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THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES OF AMERICA,et aL,
Plaintiffs,
V.
)
)
)
)
) Civil Action No.: 1:23-CV-00108-LMB-JFA
GOOGLE LLC,
Defendant.
)
)
)
)
)
MOniFIED PROTECTIVE ORDER
In the interests of:(i) ensuring efficient and prompt resolution of this Action;
(ii) facilitating discovery by the Parties litigating this Action; and (iii) protecting certain
information from improper disclosure or use, the Court enters the following Protective Order, as
defined below in Paragraph 1(a). Unless otherwise specified, days will be computed according to
Federal Rule of Civil Procedure 6(a).
The Court, upon good cause shown and pursuant to Fed. R. Civ. P. 26(c)(1), ORDERS as
follows:
Definitions
I. As used herein:
(a)
"Action" means the action filed in this Court under the caption United States,
et at. V. Google LLC, l:23-cv-00108-LMB-JFA, as well as any additional actions
subsequently transferred and/or centralized with this Action, including any related
discovery, pretrial, trial, post-trial, or appellate proceedings. For the avoidance of doubt.Page 2 PageID#
"Action" excludes pre-Complaint investigations by one or more Plaintiffs into potential
anticompetitive conduct by the Defendant.
(b)
"Confidential Information" or "Confidential" means information (regardless of
how it is generated, stored or maintained) or tangible things that constitute a trade secret or
other non-public confidential financial, technical, research, sales, marketing, development, or
commercial information and that have been so designated, or any Document, transcript, or
other material containing such information that has not been published or otherwise made
publicly available.' In addition, a Designating Party may designate as Confidential any
information or items made publicly available in violation ofa court order to keep such
information confidential, that the Designating Party believes should receive Confidential
treatment. Confidential Information includes (i) information copied or extracted, summarized
or compiled from Confidential Information, and (ii) testimony, conversations, or
presentations by Parties or their Counsel that reveal Confidential Information.
(c)
"Competitive Decision-Making" means the action or process of making a
business decision or resolving a non-legal question relating to a competitor, potential
competitor, customer, or distribution partner regarding contracts, marketing, pricing,
product, service development or design, product, or service offering, research and
development, mergers and acquisitions, or licensing, acquisition, funding, or enforcement of
intellectual property. It does not include legal advice provided in connection with litigation,
potential litigation, or regulatory matters, nor does it include work performed as part of a
trial team or to keep management advised on the progress or status of litigation, potential
'For the avoidance of doubt, the Receiving Party's belief that material designated as
Confidential does not meet this standard shall not deprive such material ofthe protections
afforded to Confidential Information. Any challenge to a designation is subject to Paragraph 13.Page 3 PageID#
litigation, or regulatory matters.
(d)
"Defendant" means Google LLC, as well as its parents, divisions,
subsidiaries, affiliates, partnerships and joint ventures, and all directors, officers,
employees, agents (including counsel), and representatives ofthe foregoing.
(e)
"Designated In-House Coimsel" means In-House Counsel designated by
Defendant who may be authorized to access Highly Confidential Information pursuant to
Paragraph 19 ofthis Order.
(f)
"Disclosed" means shown, divulged, revealed, produced, described,
transmitted or otherwise communicated, in whole or in part.
(g)
"Document" means any document or electronically stored information, as
the term is used in Fed. R. Civ. P. 34(a).
(h)
"Highly Confidential Information" or "Highly Confidential," as defined herein,
is information that, if disclosed publicly or to a Party, is likely to cause the Producing Party
material and significant competitive or commercial harm, and that has been so designated.^
Subject to the foregoing. Highly Confidential Information may include trade secrets,
including algorithms and Source Code; non-public, commercially sensitive customer lists;
non-public financial, marketing, or strategic business planning information; current or future
non-public information regarding prices, costs, or margins; information relating to research,
development testing of, or plans for existing or proposed future products; evaluation ofthe
strengths and vulnerabilities ofa Protected Person's product offerings, including non-public
pricing and cost information; confidential contractual terms, proposed contractual terms, or
^ For the avoidance of doubt, the Receiving Party's belief that material designated as Highly
Confidential does not meet this standard shall not deprive such material ofthe protections afforded
to Highly Confidential Information. Any challenge to a designation is subject to Paragraph 13.Page 4 PageID#
negotiating positions (including internal deliberations about negotiating positions);
information relating to pending or abandoned patent applications that have not been made
available to the public; personnel files; sensitive personally identifiable information; and
communications that disclose any Highly Confidential Information. Highly Confidential
Information includes (i) information copied or extracted, summarized or compiled from
Highly Confidential Information, and (ii) testimony, conversations, or presentations by
Parties or their Counsel that would reveal Highly Confidential Information. A Designating
Party may designate as Highly Confidential any information or items made publicly available
in violation of a court order to keep such information confidential, that the Designating Party
believes should receive Highly Confidential treatment. In addition, if a Protected Person (i)
has produced Investigation Materials or(ii) is required by subpoena or court order to produce
information that would cause it material and significant competitive or commercial harm, but
that information does not specifically fall into one ofthe categories of information listed in
this paragraph, upon a compelling showing, it may seek a court order that such information is
Highly Confidential. If a motion is made pursuant to this paragraph and is related to a
subpoena or court order, it must be filed no later than the due date to respond to the subpoena
or court order. If a Protected Person seeks additional protection pursuant to this paragraph
from the Court, the materials for which additional protection has been sought will not be
provided to other Persons, aside from outside counsel, until the Court has ruled.
(i)
"In-House Counsel" means any lawyer employed by the Defendant as well as
any paralegals, administrative assistants, and clerical and administrative personnel
supervised by that lawyer and employed by the Defendant. In-House Counsel, however, does
not include: 1) attorneys employed by the Plaintiffs; or 2) Outside Counsel.Page 5 PageID#
(j)
"Investigation" means any pre-complaint inquiry by one or more Plaintiffs
into potential anticompetitive conduct by the Defendant related to open web display
advertising.
(k)
"Investigation Material" means non-privileged documents, testimony or other
materials that:(i) any Non-Party provided to any Party, either voluntarily or under
compulsory process, relating to the Investigation;(ii) constitute any commimication between
any Party and any Non-Party in connection with and during the Investigation;(iii) any Party
provided to any Non-Party relating to the Investigation; and/or(iv) a Defendant, or affiliated
person or entity, provided to a Plaintiff relating to the Investigation. For the avoidance of
doubt, the Investigation Materials are governed by the terms of this Order. To the extent that
any Investigation Materials are clawed back for any reason, the procedures set forth at
Paragraph 12 ofthis Order shall apply and, as to Plaintiffs, such procedures will supersede
any other applicable clawback procedures governing the Investigation Materials.
Investigation Materials shall bedesignated as Highly Confidential by default.
(1)
"Litigation Materials" means non-privileged documents, testimony, or other
materials that:(i) any Non-Party provides to any Party, either voluntarily or under
compulsory process, in connection with and during the pendency of the Action;(ii) constitute
any communication between any Party and any Non-Party in connection with and during the
pendency ofthe Action;(iii) Defendant provides to any Plaintiff in connection with and
during the pendency ofany of the Action;(iv) any Plaintiff provides to Defendant in
connection with and during the pendency of the Action;(v)the Department of Justice
provides to any federal governmental agency in connection with and during the pendency of
this Action; and/or(vi)any federal govemmental agency provides to the Department ofPage 6 PageID#
Justice in connection with and during the pendency of this Action.
(m)
"Non-Party" means any natural person, partnership, corporation, association,
or other legal entity not named as a Party in the Action,
(n)
"Outside Counsel" means the attorneys employed by outside law firms who are
retained to represent or advise a Party, as well as any paralegals, administrative assistants,
and clerical and administrative personnel supervised by those lawyers and employed by
those Outside Counsel. To the extent any Outside Counsel has not filed an appearance in the
Action("Non-Appearing Law Firm"), a Party shall notify the other Parties ofthe name ofthe
Non- Appearing Law Firm at least seven days before any attorneys of the Non-Appearing
Law Firm obtain access to any Investigation Materials and/or Litigation Materials. Attorneys
ofthe Non- Appearing Law Firm who are given access to Investigation Material and/or
Litigation Material, shall first complete and execute an Agreement Conceming
Confidentiality agreeing to be bound by the terms of this Order in the form of Appendix A
attached hereto.
(o)
"Party" means any Plaintiff or Defendant in the Action, and in the case of
each State Plaintiff, means the Attorney General's Office of such State Plaintiff. "Parties"
collectively means all Plaintiffs and Defendant in the Action.^
(p)
"Plaintiffs" means the Plaintiffs in the Action, including all of their
employees, agents, and representatives.
(q)
"Plaintiffs' Counsel" includes:(i) any employee of the Antitrust Division of
the U.S. Department ofJustice who is assigned to work on this Action and/or any
^ For purposes of this Protective Order, the term "Party" shall be construed in a manner
consistent with the Court's ruling on the Joint Proposed Discovery Plan. Dkt. 94.Page 7 PageID#
employee ofthe U.S. Department ofJustice who is responsible for supervising work
related to this Action; and (ii) any employee ofa State Plaintiffs' Attorney General's
Office (including retained attorneys and contract attorneys). For the avoidance of doubt,
"employee" as used in this sub-paragraph includes, but is not limited to, attorneys,
paralegals, economists, administrative assistants, IT and support staff, and clerical and
administrative personnel;
(r)
"Person" means any natural person, corporate entity, business entity,
partnership, association,joint venture, governmental entity, or trust.
(s)
"Producing Party" means a Party who produced or produces
Investigation Material, Litigation Material, or Source Code.
(t)
"Protected Person" means any Person (including a Party or a Non-Party)
that either voluntarily or under compulsory process, has provided or provides:(i)
Investigation Materials,(ii) Litigation Materials; or (iii) Source Code.
(u)
"Receiving Party" means a Party who received Investigation Material,
Litigation Material, or Source Code.
(v)
"Source Code" means extremely sensitive information or items representing
computer code and associated comments and revision histories, formulas, engineering
specifications, or schematics that define or otherwise describe in detail the algorithms or
structure ofsoftware or hardware designs, disclosure of which to another Party or Non-Party
would create a substantial risk of serious harm that could not be avoided by less restrictive
means. To the extent production of Source Code becomes necessary in this case, a Party
who produces Source Code may designate it as "Highly Confidential - Source Code." The
protocols for Defendant's production of Source Code, and the review ofsuch Source Code,Page 8 PageID#
appear in Appendix B to this Order.
(w)
"State Plaintiffs" means the States of California, Colorado, Connecticut, New
Jersey, New York, Rhode Island, and Tennessee, and the Commonwealth of Virginia, and
any other state thatjoins the Action, by and through their respective Attomeys General.
(x)
"State Plaintiffs' Counsel" means attomeys employed by the State
Plaintiffs' Attomey General's Office (including retained attomeys and contract
attomeys).
Designation ofHighly ConfidentialInformation and ConfidentialInformation
2. Within two business days of the Court's entry ofthis Order, each Party shall send
by email, facsimile, or ovemight delivery a copy ofthis Order to any Non-Party Protected
Person (or, if represented by counsel, the Non-Party Protected Person's counsel)that
provided Investigation Materials to that Party.
3. Production of Investigation Materials Originating from a Non-Party. If a non-
Party Protected Person determines that this Order does not adequately protect its Confidential
Information, it may, within seven days after receipt of a copy ofthis Order, seek additional
protection from the Court for its Confidential information. If a non-Party Protected Person
timely seeks additional protection from the Court, the Party's obligation to produce that non-
Party Protected Person's documents containing Confidential Information, that is the subject of
the motion, is suspended until a decision is rendered by the Court. If the Court orders the
production ofthe non-Party's documents,the Party will have seven days to make the
production unless a longer period is ordered by the Court.
4. Designation of Investigation Materials as Confidential or Highly Confidential by
Protected Persons. To the extent a Protected Person has already designated Investigation Page 9 PageID#
Materials as Confidential or Highly Confidential, those materials shall retain those existing
designations, subject to any later challenge by a Party, to the extent that Investigation
Materials are reproduced in the Action, all protections afforded to Litigation Materials
pursuant to this Order shall apply.
5. The identity of a Non-Party submitting Highly Confidential Information or
Confidential Information shall also be treated as Highly Confidential Information or
ConfidentialInformation for the purposes of this Order where the submitter has requested
such confidential treatment.
6. Any production of documents or testimony not designated as Confidential or Highly
Confidential Information will not be deemed a waiver of any future claim of confidentiality
conceming such information if it is subsequently designated as Confidential or Highly
Confidential Information. If at any time before trial of this Action, a Protected Person realizes
that it should have designated as Confidential or Highly Confidential Information any
Investigation Materials, Litigation Materials, or Source Code that Person previously produced,
it may so designate such Documents, testimony, or other materials by notifying the Parties in
writing, and, to the extent the new designations relate to Documents, an overlay file with the
new designations shall also be provided in accordance with Paragraph 7(g). The Parties shall
thereafter treat the Investigation Materials, Litigation Materials, or Source Code pursuant to
the Protected Person's new designation under the terms of this Order. However,the disclosure
of any information for which disclosure was proper when made will not be deemed improper
regardless ofany such subsequent confidentiality designation.
7. Designation of Litigation Materials as Highly Confidential or Confidential by
Protected Persons. The following procedures govem the process for Protected Persons toPage 10 PageID#
designate as Highly Confidential or Confidential any information that they disclose in this
Action, including, but not limited to, information in response to requests under Fed. R. Civ.
P. 30,31,33, 36, and 45, and Documents disclosed in response to Fed. R. Civ. P. 33(d),
34(b)(2) and (c), or 45:
(a)
Indiscriminate designations are prohibited.
(b)
Testimony. All transcripts of depositions taken in the Action after entry ofthis
Order will be treated as Highly Confidential Information in their entirety for 45 days after the
date ofthe deposition, or until 5 days before trial, whichever date is earlier. Parties will be
responsible for obtaining the deposition transcript for any Party deponents. For Non-Party
deponents, if requested by the Non-Party deponent, the Party who noticed the deposition shall,
within 5 business days of being provided a final transcript (subject to any errata) of the
deposition (or as soon as reasonably possible after the request is made), provide the final
transcript(subject to any errata) to the Non-Party deponent(or the Non-Party deponent's
counsel, if applicable).
Within 45 days following the date ofthe deposition, the deponent, whether a
Non-Party or a Party, may designate, subject to the provisions of this Order, Highly
Confidential Information or Confidential Information any portion of the deposition transcript,
by page(s) and line(s), and any deposition exhibits provided by the deponent or the deponent's
employer or its affiliates, or containing the Highly Confidential Information or Confidential
Information of the deponent or the deponent's employer or its affiliates (regardless of who
provided or produced the Document). To be effective, such designations must be provided in
writing to all Parties. All transcripts of depositions taken in this Action after entry of this Order
will be treated as Highly Confidential Information in their entirety until the deadline for the Page 11 PageID#
deponent to designate portions of the transcript as Highly Confidential Information has
expired. Further, to the extent that a Party's Highly Confidential or Confidential Documents
were utilized in the deposition, that Producing Party also has 45 days following the date ofthe
deposition to designate any portion of the deposition testimony as Highly Confidential or
Confidential to the extent the deposition testimony discloses or relates to Highly Confidential
or Confidential Documents used at the deposition. To be effective, such designations must be
provided in writing to all Parties' counsel.
When a Party is entitled under this Order to question a deponent about a
Document or information that has been designated by a Non-Party as Highly Confidential or
Confidential, and such Non-Party is not in attendance at the deposition, the Party that asked
such questions shall designate as Highly Confidential or Confidential the portion ofthe
transcript relating to such Highly Confidential or Confidential Document or information within
45 days following the date ofthe deposition.
(c)
Documents. A Protected Person who designates as Highly Confidential
Information any Document that it produced in this Action must stamp or otherwise mark each
Document containing said information with the designation "HIGHLY CONFIDENTIAL" in
a manner that will not interfere with legibility, including page numbering, or audibility unless
such Document is produced in native electronic format. A Protected Person who designates as
Confidential Information any Document that it produced in this Action must stamp or
otherwise mark each Document containing said information with the designation
"CONFIDENTIAL" in a manner that will not interfere with legibility, including page
numbering, or audibility. Any Document that contains Confidential Information or Highly
Confidential Information may be so designated in its entirety. To the extent a Document is Page 12 PageID#
produced in native form, such Documents shall be produced in accordance with Paragraph 7(d)
below.
(d)
Electronic Documents and Data. Where a Protected Person produces
Confidential or Highly Confidential Information contained in electronic files and Documents
in native electronic format, such electronic files and Documents shall be designated by the
Protected Person for protection under this Order by appending to the file names or designators'
information indicating whether the file contains Highly Confidential Information or
Confidential Information, or by any other reasonable method for appropriately designating
such information produced in electronic format, including by including a slip sheet associated
with the electronic file or by making such designations in reasonably accessible metadata
associated with the files. Where Highly Confidential Information or Confidential Information
is produced in electronic format on a disk or other medium that contains exclusively
confidential information, the "HIGHLY CONFIDENTIAL" or"CONFIDENTIAL"
designation may be placed on the disk or other medium. When electronic files or Documents
in native form are printed for use at a deposition, in a court proceeding, or for provision in
printed form to any person who may receive such files in accordance with this Order, the Party
printing the electronic files or Documents shall include the slip sheet identifying the electronic
file or Document as "HIGHLY CONFIDENTIAL" or "CONFIDENTIAL" along with the
production number or Bates number and designation associated with the native file, or shall
affix a legend to the printed Document saying "HIGHLY CONFIDENTIAL" or
"CONFIDENTIAL" and include the production number or Bates number and designation
associated with the native file.
(e)
Upward Designation of Litigation Materials Produced by Other Parties or Non- Page 13 PageID#
Parties. A Protected Person may upward designate (i.e., change any Litigation Materials
produced without a designation to a designation of"Confidential" or "Highly Confidential" or
designate any Litigation Materials produced as "Confidential" to a designation of"Highly
Confidential") any Litigation Materials produced by another Protected Person, provided that
said Litigation Materials contains the upward designating Protected Person's own Confidential
Information or Highly Confidential Information.
(f)
Upward designation shall be accomplished by providing written notice to the
Parties and the relevant disclosing Protected Person identifying the Litigation Materials to be
re- designated within 120 days from the date ofthe production containing the materials the
Protected Person seeks to upwardly designate, or 30 days prior to trial in the Action,
whichever is earlier. Such notice must identify(by Bates number, or in the event there is no
Bates number, by other individually identifiable information) each Document the Protected
Person wishes to upward designate, and include an explanation as to why the Protected Person
wishes to upward designate such Documents, and why the existing confidentiality designation
is insufficient. The Protected Person shall also provide an overlay file reflecting the new
designations in accordance with Paragraph 7(g). Failure to upward designate within 120 days,
alone, will not prevent a Protected Person from obtaining the agreement of the disclosing
Protected Person to upward designate certain Litigation Materials or from moving the Court
for such relief. Any Party may object to the upward designation of Litigation Materials
pursuant to the procedures set forth in Paragraph 13 regarding challenging designations.
(g)
Overlav Files. To the extent this Order requires a Protected Person to provide an
overlay file in connection with a new or altered confidentiality designation, that Protected
Person shall have five business days from the date of the changed designation to produce an Page 14 PageID#
overlay file. In the interim, the Parties shall take care to treat the Documents at issue as if the
new designation applies. For the avoidance of doubt, a Party does not violate this provision
where it in good faith attempts to comply with the new designation.
8. In the event that a Party is required to produce Documents designated by a Non-Party
as Confidential or Highly Confidential Information, then the Party shall:
(a)
promptly notify in writing the Party seeking the Highly Confidential
Information or Confidential Information that some or all of the information requested is
subject to a protective order;
(b)
promptly notify the Non-Party that its Highly Confidential Information or
Confidential Information is being requested and make the information requested available
for inspection by the Non-Party or Party; and
(c)
promptly provide the Non-Party with a copy ofthis Order, the relevant
discovery request(s), and a reasonably specific description ofthe information requested.
The purpose of this provision is to alert a Party to the existence of
confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect its
confidentiality interests in this Court.
9. If the Non-Party or Party fails to object or seek a protective order from this Court
within 14 days ofreceiving the notice and accompanying information, the Non-Party or
Party's Highly Confidential Information or Confidential Information responsive to the
discovery request may be produced. If the Non-Party or Party timely seeks a protective order,
its Highly Confidential Information or Confidential Information shall not be produced before
a determination by the Court. Absent an order to the contrary, the Non-Party or Party shall
bear the burden and expense of seeking protection in this Court of its Highly Confidential Page 15 PageID#
Information or Confidential Information. The terms of this Order are applicable to information
produced by a Non-Party or Party in the Action and designated as Highly Confidential
Information or Confidential Information. Such information produced by Non-Parties or Parties
in connection with this Action is protected by the remedies and relief provided by this Order.
Nothing in these provisions should be construed as prohibiting a Non-Party or Party from
seeking additional protections.
10. Unauthorized disclosure of Confidential Information, Highly Confidential
Information, or Highly Confidential - Source Code. In the event of a disclosure of any
Confidential Information, Highly Confidential Information, or Highly Confidential - Source
Code to any person(s) not authorized to receive such disclosure under this Order, the Party
who discovers such unauthorized disclosure shall:(a) promptly notify the Protected Person
whose material has been disclosed and provide to such Protected Person all known relevant
information concerning the nature and circumstances of the disclosure. If it is readily
discernible which Party is responsible for the disclosure, the disclosing Party shall also
promptly take all reasonable measures to retrieve the improperly disclosed material and to
ensure that no further unauthorized disclosure and/or use thereof is made;(b)inform the
Person(s) to whom unauthorized disclosure was made of all the terms of this Order; and (c)
request such Person(s) execute the Agreement Concerning Confidentiality in the form of
Appendix A attached hereto. If it is not readily discernible which Party is responsible for the
disclosure, the Parties shall work together to:(a) promptly take all reasonable measures to
retrieve the improperly disclosed material and to ensure that no further unauthorized
disclosure and/or use thereofis made;(b)inform the Person(s) to whom unauthorized
disclosure was made of all the terms ofthis Order, and (c)request such Person(s) execute the Page 16 PageID#
Agreement Concerning Confidentiality in the form of Appendix A attached hereto.
11. Unauthorized or inadvertent disclosure shall not change the confidential status of any
disclosed material or waive the Producing Party's right to maintain the disclosed material as
containing Confidential Information, Highly Confidential Information, or Highly
Confidential- Source Code.
Privileged Investigation Materials and Litigation Materials
12.(a)
The production of privileged or work-product protected Documents,
electronically stored information ("ESI"), or information, whether inadvertent or otherwise, is
not a waiver ofthe privilege or protection from discovery in this case or in any other federal
or state proceeding. This Order shall be interpreted to provide the maximum protection
allowed by Federal Rule of Evidence 502(d). Federal Rule of Evidence 502(b)shall not apply
to any disputes regarding Investigation Material or Litigation Material.
(b)
Nothing contained herein is intended to or shall serve to limit a Party's right
to conduct a review of Documents, ESI (including metadata), or information for relevance,
responsiveness and/or segregation of privileged and/or protected information before
production.
(c)
If the Producing Party becomes aware that it has produced information
protected by the attorney-client privilege or any other privilege or immunity, the Producing
Party will promptly notify each Receiving Party in writing ofthe production and the basis of
the privilege being asserted. After being notified, a Party must promptly return, sequester,'* or
destroy the specified information and any copies or summaries of the information that it has;
must not use or disclose the information until the claim is resolved; must take reasonable steps
For the avoidance of doubt, sequestration prohibits the Party in possession from further review
ofthe material once a claim of privilege is made except as otherwise provided in this Paragraph. Page 17 PageID#
to retrieve the information ifthe party disclosed it before being notified; and may promptly
present the information to the court under seal for a determination of the claim in camera. Any
challenge to a claim of privilege contemplated by this Paragraph must be made promptly. The
Producing Party must preserve the information until the claim is resolved.
(d)
If a Receiving Party becomes aware that it is in receipt of information or
material that it knows or reasonably should know is privileged, counsel for the Receiving
Party shall immediately take steps to:(i) stop reading such information or material;(ii) notify
counsel for the Producing Party ofsuch information or material;(iii) collect all copies of
such information and material; and (iv) return to the Producing Party and/or destroy such
information or material(and, in the case of destruction, certify that fact to the Producing
Party if requested to do so). Any notes or summaries referring or relating to such material
shall be destroyed simultaneously therewith.
(e) This Order is without prejudice to any Protected Person's right to assert that any
Investigation Materials or Litigation Materials are subject to any applicable claim of privilege
or protection, including, but not limited to, the attorney-client privilege and the work-product
doctrine, and it is without prejudice to any Party's right to contest such a claim of privilege or
protection.
Objections to Confidentiality Designations
13. Any Party who objects to any confidentiality designation, or part thereof,(the
"Objecting Party") may,until 30 days before the trial of its Action, provide a wntten notice to
the Protected Person who made such designation (the "Designating Party") and to all Parties
stating with particularity the grounds for the objection. All materials objected to shall continue
to be treated as Confidential Information, Highly Confidential Information, or Highly Page 18 PageID#
Confidential - Source Code pending resolution of the dispute. Within 10 days of the Objecting
Party's written notice, the Objecting Party and the Designating Party shall attempt to confer to
discuss their respective positions. Ifthe Objecting Party and Designating Party cannot reach an
agreement on the objection within 10 days ofthe Objecting Party's written notice (or another
deadline agreed to by the Objecting Party and the Designating Party), the Objecting Party may
raise the dispute to this Court by filing a motion in accordance with the applicable Local
Rules. If the Court finds the designation of Confidential Information, Highly Confidential
Information, or Highly Confidential - Source Code to have been inappropriate, the challenged
designation shall be considered rescinded, and the Designating Party shall reproduce the
Documents with the revised designations, along with an overlay file in accordance with
Paragraph 7(g). Notwithstanding anything else contained in this Order, the Parties reserve
their rights under Fed. R. Civ. P. 37.
Disclosure ofHighly Confidential Information or Confidential Information
14. Highly Confidential Information may be disclosed only to the following Persons:
(a)
the Court and all Persons assisting the Court in the Action, including law
clerks, court reporters, and stenographic or clerical personnel;
(b)
Outside Counsel for Defendant, except that access by non-attomeys shall
be limited to personnel assigned to work on the Action, whose functions require access
to the information. Such personnel shall not include any employee of a Party;
(c)
Plaintiffs' Counsel, except that access by non-attomeys shall be limited to
personnel assigned to work on the Action, whose functions require access to the
information;
(d)
outside vendors or service providers(such as copy-service providers, Page 19 PageID#
outside court reporters retained for depositions, document-management consultants, or
lawyers or law firms for document review other than Outside Counsel) and agents or
independent contractors retained by a Party to assist that Party in the Action provided that
they shall first execute an Agreement Concerning Confidentiality agreeing to be bound by
the terms of this Order in the form of Appendix A attached hereto;
(e)
any mediator, arbitrator, or special master that the Parties engage in this Action
or that this Court appoints provided that they shall first execute an Agreement Concerning
Confidentiality agreeing to be bound by the terms of this Order in the form of Appendix A
attached hereto;
(f)
any Person who the Highly Confidential Information itself indicates, or who
the Receiving Party has a good-faith basis to believe, was the author, addressee, recipient,
custodian, or source ofthe Document or Highly Confidential Information.
(g)
any Person who the Highly Confidential Information itself indicates, or who
the Receiving Party has a good-faith basis to believe, had lawful access to the Document or
the Highly Confidential Information;
(h)
during a deposition, any Person who the Highly Confidential Information
itself indicates, or who the Receiving Party has a good-faith basis to believe, had
knowledge of the Highly Confidential Information;
(i)
during a deposition, any current employee ofthe Designating Party;
(j)
any Person retained by a Party to serve as a testifying or consulting expert in
this Action,^ including any employees of the firm with which the expert or consultant is
^ This provision does not apply to any Person retained by a Party to serve as a testifying or
consulting expert, where such person is also an employee of a Party. Page 20 PageID#
associated and independent contractors who assist the expert's work in the Action, provided
that they shall first execute an Agreement Concerning Confidentiality agreeing to be bound
by the terms of this Order in the form of Appendix A attached hereto;
(k)
outside trial consultants (including, but not limited to, graphics consultants and
mock jurors), provided that they shall first execute an Agreement Concerning Confidentiality
agreeing to be bound by the tenns ofthis Order in the form of Appendix A attached hereto;
(1)
any Person as may be authorized by written agreement of the Designating
Party, by verbal agreement of the Designating Party on the record at a deposition or Court
hearing, or by order ofthe Court.
15. Confidential Information may be disclosed only to the following Persons:
(a)
the Court and all Persons assisting the Court in the Action, including law
clerks, court reporters, and stenographic or clerical personnel;
(b)
Outside Counsel for Defendant, except that access by non-attorneys shall
be limited to personnel assigned to work on the Action, whose functions require access
to the information. Such personnel shall not include any employee of a Party;
(c)
Plaintiffs' Counsel, except that access by non-attorneys shall be limited to
personnel assigned to work on the Action, whose functions require access to the
information;
(d)
the officers, directors, and employees(including In-House Counsel)of
Defendant to whom disclosure is reasonably necessary for this litigation and who have signed
the Agreement Concerning Confidentiality agreeing to be bound by the terms of this Order in
the form of Appendix A attached hereto;
(e)
outside vendors or service providers(such as copy-service providers, outside Page 21 PageID#
court reporters retained for depositions, document-management consultants, or lawyers or
law firms for document review other than Outside Counsel) and agents or independent
contractors retained by Defendant to assist Defendant in the Action provided that they shall
first execute an Agreement Concerning Confidentiality agreeing to be bound by the terms of
this Order in the form of Appendix A attached hereto;
(f)
any mediator, arbitrator, or special master that the Parties engage in the Action
or that this Court appoints provided that they shall first execute an Agreement Concerning
Confidentiality agreeing to be bound by the terms ofthis Order in the form of Appendix A
attached hereto;
(g)
any Persons who the Confidential Information itself indicates, or who the
Receiving Party has a good-faith basis to believe, was the author, addressee, recipient,
custodian, or source of the Document or Confidential Information;
(h)
any Persons who the Confidential Information itself indicates, or who
the Receiving Party has a good faith basis to believe had lawful access to the
Document or Confidential Information;
(i)
during a deposition, any Persons who the Confidential Information itself
indicates, or who the Receiving Partyhas a good-faith basis to believe, had knowledge ofthe
Confidential Information;
(j)
any Person whose statements or communications are quoted, recounted, or
summarized in a Party's or Non-Party's Documents or Confidential Information, except that
only those portions of the Documents or Confidential Information quoting, recounting, or
summarizing a Person's statements or communications may be disclosed to that Person;
(k)
during a deposition, any current employee of the Designating Party; Page 22 PageID#
(1)
outside trial consultants (including, but not limited to, graphics consultants and
mock jurors) provided that they shall first execute an Agreement Concerning Confidentiality
agreeing to be bound by the terms ofthis Order in the form of Appendix A attached hereto;
(m)
any Person retained by a Party to serve as a testifying or consulting expert in
these Action,^ including any employees of the firm with which the expert or consultant is
associated and independent contractors who assist the expert's work in the Action, provided
that they shall first execute an Agreement Concerning Confidentiality agreeing to be bound by
the terms of this Order in the form of Appendix A attached hereto;
(n)
any Person as may be authorized by written agreement of the Designating
Party, by verbal agreement of the Designating Party on the record at a deposition or Court
hearing, or by order of the Court.
16. The Parties shall have the right to seek redress from this Court to enforce the
provisions of the Agreement Concerning Confidentiality set forth in Appendix A with respect
to any Person bound by this Order.
17. Each Person described in Paragraphs 14 and 15 of this Order to whom information
designated as Highly Confidential Information or Confidential Information is disclosed must
not disclose that Highly Confidential Information or Confidential Information to any other
Person, except as permitted in this Order.
18. Nothing in this Order:
(a)
limits a Protected Person's use or disclosure of its own information designated
as Highly Confidential Information or Confidential Information;
^ This provision does not apply to any Person retained by a Party to serve as a testifying or
consulting expert, where such Person is also an employee of a Party. Page 23 PageID#
(b)
prevents disclosure of Highly Confidential Information or Confidential
Information with the consent of the Protected Person that designated the material as
Confidential or Highly Confidential;
(c)
prevents disclosure by a Party of Highly Confidential Information or
Confidential Information:(i)that is or has become publicly known through no fault ofthat
Party;(ii) lawfully acquired by or known to that Party independent of receipt during the
Investigation or in discovery in the Action;(iii) previously produced, disclosed and/or
provided to that Party without an obligation of confidentiality and not by inadvertence or
mistake; or(iv) pursuant to an order of a court or as may be required by regulation;
(d)
prevents counsel from rendering advice to his or her client with respect to
this matter or from generally referring to or relying upon Confidential Information or
Highly Confidential Information in rendering such advice so long as counsel does not
specifically disclose the substance of the Confidential Information or Highly Confidential
Information;or
(e)
prevents Plaintiffs' retention, use, or disclosure of Investigation Materials
outside the context ofthe Action to the extent permitted by applicable law or regulation, for
law enforcement purposes, as required by law,court order, or regulation, or for the purpose of
securing compliance with a Final Judgment in this Action. Any such disclosures shall be
limited to those permitted by applicable law or regulation. Plaintiffs will not disclose any
Litigation Materials produced only during the pendency of the Action to any Non-Party,
except as ordered by a court or as may be required by law or regulation and subject to
Paragraph 28, If Investigation Materials or Litigation Materials are requested for disclosure
under a state's public information act or the equivalent, this Order prohibits disclosure to the Page 24 PageID#
extent the state's public information act or the equivalent provides an exception for disclosure
of information protected by court order.
Disclosure ofHighly ConfidentialInformation to Designated In-House Counselfor
Parties Based on Need
19. A Party may at any time before the trial of its Action request disclosure of Highly
Confidential Information to Designated In-House Counsel by consent ofthe Designating
Party or motion with the Court. Unless otherwise ordered by the Court or agreed to in writing
by the Designating Party, a Party seeking to disclose Highly Confidential Information to
Designated In-House Counsel must submit in writing to the other Parties and the Designating
Person a written statement that:(1)describes with particularity the Highly Confidential
Information the Party seeks to disclose to Designated In-House Counsel;(2)sets forth the full
name of each Designated In- House Counsel and the city and state of his or her residence,
and (3) describes each Designated In-House Counsel's primary job duties and responsibilities
in sufficient detail to determine if each Designated In-House Counsel is involved in
Competitive Decision-Making. The Party must meet and confer with the Designating Party to
try to resolve the matter by agreement within seven days of the written notice. If no
agreement is reached, the Party may file a motion with the Court. The other Parties and/or the
Designating Party will have seven days to respond to such motion. The Party will not
disclose any Highly Confidential Information to Designated In-House Counsel pending
resolution ofthe dispute. If the Court finds that the Designated In-House Counsel has a
particularized need for access to the Highly Confidential Information that outweighs the risk
of harm to the Designating Party or the public interest, the Party will be permitted to disclose
the Highly Confidential Information to the Designated In-House Counsel. Page 25 PageID#
Use ofInformation Designated Highly Confidential or Confidential in this Action
20. In the event that any Highly Confidential Information or Confidential Information is
contained in any pleading, motion, exhibit, or other paper filed or to be filed with the Court,
the Court shall be so informed by the Party filing such papers, and such papers shall be filed
under seal, in accordance with this Court's Local Rule 5, as modified by the terms of this
Order. The Parties agree to act in good faith to limit the need to seal Documents filed in this
Court.
21. Filing Highly Confidential Information or Confidential Information Under Seal.
The filing of documents designated as Confidential or Highly Confidential under seal will
be governed by the provisions of Local Civil Rule 5.
22. Parties shall give the other Parties notice(a minimum oftwo business days)if
they reasonably expect a deposition, hearing, or other proceeding to include Highly
Confidential Information so that the other Parties can ensure that only authorized
individuals are present during the portions ofthose proceedings where the Highly
Confidential Information may be used. The use ofa Document as an exhibit at a
deposition shall not in any way affect its designation as Highly Confidential Information
or Confidential Information.
Use ofHighly Confidential Information or ConfidentialInformation at Trial
23. Disclosure at trial or at any evidentiary hearing of any Document,testimony, or other
material designated as Highly Confidential Information or Confidential Information will be
governed pursuant to a separate court order. Unless otherwise directed by the Court, the
Parties shall meet and confer and file a motion accompanied by a proposed order outlining
those procedures no later than 30 calendar days before the first day of trial or any evidentiary Page 26 PageID#
hearing. Upon the filing of a motion and proposed order governing the disclosure of Highly
Confidential Information or Confidential Information at trial or any evidentiary hearing, the
Parties shall provide notice of such order to Non-Parties whose Highly Confidential
Information or Confidential Information is expected to be used at trial or any evidentiary
hearing.
24. Unless otherwise provided for in this Order, Highly Confidential Information and
Confidential Information produced by a Party or a Non-Party in the Action shall be used
solely for the conduct ofthe Action and shall not be used by a Party, Non-Party, or any
Person subject to this Order, including counsel for a Party or Non-Party, for any business,
commercial, competitive, personal, or other purpose. Such Highly Confidential and
Confidential Information may only be disclosed under the conditions described in this Order.
Investigation Materials or Litigation Materials Subpoenaed or Ordered Produced in
Other Litigation
25. If a Party is served with a lawful subpoena or a court order issued by a court,
arbitral, administrative, or legislative body, or with a court order issued in other litigation
that compels disclosure of any information or items designated in the Action as
Confidential or Highly Confidential that Party must:
(a)
promptly notify in writing the Designating Party (such notification shall
include a copy of the subpoena or court order);
(b)
promptly notify in writing the Person or entity who issued the subpoena or
caused the order to issue in the other litigation, that some or all of the material covered by
the subpoena or order is subject to this Order(such notification shall include a copy of this
Order);and
(c)
cooperate with respect to all reasonable procedures sought to be pursued by Page 27 PageID#
the Designating Party whose Highly Confidential or Confidential Information may be
affected.^
26. If the Designating Party timely® seeks a protective order, the Party served with the
subpoena or court order shall not produce any information designated in this Action as
Confidential or Highly Confidential before a determination by the court from which the
subpoena or order issued, unless the Party has obtained the Designating Party's permission.
The Designating Party shall bear the burden and expense ofseeking protection in that court
of its Confidential Information or Highly Confidential Information—and nothing in these
provisions should be construed as authorizing or encouraging a Receiving Party in the Action
to disobey a lawful directive from another court.
27. If, under any public records or other relevant law,any Investigation Materials or
Litigation Materials are subject to any form of compulsory process in a Plaintiff State or is
demanded from any Plaintiff, such Plaintiff shall notify in writing the Designating Party
whose Investigation Materials or Litigation Materials may be affected at least 10 business
days before producing Investigation Materials or Litigation Materials, unless state or federal
statute, or court order or other public adjudicatory body requires that the Plaintiff State
produce the Investigation Materials or Litigation Materials in a shorter time frame. A Plaintiff
shall not produce the Investigation Materials or Litigation Materials in response to such
^ The purpose of imposing these duties is to alert the interested parties to the existence of this
Order and to afford the Designating Party in this case an opportunity to try to protect its
confidentiality interests in the court or other tribunal from which the subpoena or order issued.
® The Designating Party shall have at least 14 days from the service ofthe notification pursuant
to Paragraph 25(a)to seek a protective order, imless the subpoena or order requires a response
within a period shorter than 14 days, or unless a shorter period applies under the rules of the
court or other tribunal from which the subpoena or order issued, in which case such rules shall
apply. Page 28 PageID#
compulsory process orpublic records request unless the Plaintiff deems that it is required by
law to do so and provides 10 business days' notice of its intent to do so to the Designating
Party, unless state or federal statute, or court order or other public adjudicatory body requires
that the Plaintiff produce the Investigation Materials or Litigation Materials in a shorter time
frame. However, if a Plaintiff denies a public records or similar request and the denial is not
successfully challenged or overruled, the Plaintiff does not need to provide notice pursuant to
this paragraph. IfInvestigation Materials or Litigation Materials are requested for disclosure
under a state's public information act or the equivalent, this Order prohibits disclosure to the
extent the state's public information act or the equivalent provides an exception for disclosure
of information protected by court order. Nothing contained herein shall alter or limit the
obligations of a Plaintiff State that may be imposed by statute or court order regarding the
disclosure of Documents and information supplied to the state.
Procedures upon Termination ofthis Action
28. The obligations imposed by this Order survive the termination of this Action unless
the Court, which shall retain jurisdiction to resolve any disputes arising out ofthis Order,
orders otherwise. Except as otherwise provided by Paragraph 18, within 90 days after the
expiration of the time for appeal of an order,judgment, or decree terminating the Action, all
Persons, other than Plaintiffs, having received information designated as Confidential
Information, Highly Confidential Information) or Highly Confidential - Source Code in such
Action must return all copies thereof to the Protected Person(or the Protected Person's
counsel if represented by counsel)that produced it or destroy or delete all copies of such
Confidential Information, Highly Confidential Information, or Highly Confidential - Source
Code. Within 90 days after the expiration ofthe time for appeal of an order,judgment, or Page 29 PageID#
decree terminating the Action, all Plaintiffs in such Action having received information
designated as Confidential Information, Highly Confidential Information, or Highly
Confidential - Source Code must, to the extent permitted by Plaintiffs' retention schedules,
either make a good-faith effort to return all copies thereof to the Protected Person(or the
Protected Person's counsel if represented by counsel) that produced it or destroy or delete all
copies ofsuch Confidential Information, Highly Confidential Information, or Highly
Confidential - Source Code. Within 90 days after the expiration of the time for appeal of an
order,judgment, or decree terminating this Action, all Persons having received information
designated as Confidential Information must certify compliance with this Paragraph 28 in
writing to the Party or Protected Person that produced the Confidential Information.
29. Counsel for the Parties will be entitled to retain court papers and exhibits, deposition
transcripts and exhibits, hearing transcripts and exhibits, trial transcripts and exhibits,
correspondence (including internal correspondence and email) and work product, provided
that the Parties and their counsel do not disclose the portions of these materials containing
information designated as Highly Confidential Information or Confidential Information to any
Person, except pursuant to court order or agreement with the Protected Person that produced
the Highly Confidential Information or Confidential Information or as otherwise permitted
herein. All Highly Confidential Information and Confidential Information returned to the
Parties or their counsel by the Court likewise must be disposed of in accordance with this
paragraph. Nothing in this paragraph, however, restricts the rights of the Parties under
Paragraphs 14 and 15 of this Order.
New Parties to The Action
30. In the event that additional Persons or entities become parties to the Action, Page 30 PageID#
such new Parties shall not have access to Confidential Infomiation, Highly Confidential
Information, or Highly Confidential - Source Code produced by or obtained from any
Protected Person until an authorized person executes, on behalf of the new Party, an
Agreement Concerning Confidentiality agreeing to be bound by the terms of this Order
in the form of Appendix A attached hereto.
Non-Parties
31. Any Party, in conducting discovery from Non-Parties in connection with the Action,
shall provide any Non-Party from which it seeks discovery with a copy ofthis Order so as to
inform each such Non-Party of his, her or its rights herein. If a Non-Party provides discovery
to any Party in connection with the Action, the provisions of this Order shall apply to such
discovery as ifsuch discovery were being provided by a Party. Under such circumstances, if
the Non-Party agrees to be bound by the terms of this Order in the form of Appendix A
attached hereto, the Non-Party shall have the same rights and obligations under the Order as
held by the Parties, except that, other than with leave of court, in no circumstance may a
Party's Highly Confidential Information be disclosed to a Non-Party without the consent of
that Party. However, a Party's Highly Confidential Information may be shared with a former
employee ofthat Party if the former employee may view the Highly Confidential Information
pursuant to Paragraph 14.
Reservation ofRights
32. Nothing contained in this Order or any designation of confidentiality hereunder, or
any failure to make such designation, shall be used or characterized by any Party as an
admission by a Party or a Party opponent. Nothing in this Order shall be deemed an
admission that any particular information designated as Confidential Information, Highly Page 31 PageID#
Confidential Information, or Highly Confidential - Source Code is entitled to protection under
the Order, Federal Rule of Civil Procedure 26(c), or any other law. Nothing in this Order
shall be construed as granting any Person a right to receive specific Confidential Information,
Highly Confidential Information, or Highly Confidential - Source Code where a court has
entered an order precluding thatPerson from obtaining access to that information. The Parties
specifically reserve the right to challenge the designation of any particular information as
Confidential Information, Highly Confidential Information, or Highly Confidential - Source
Code and agree that no Party waives any right it otherwise would have to object to disclosing
or producing any information or item on any ground not addressed in this Order. Similarly,
no Party waives any right to object on any ground to introduction or use as evidence of any of
the Investigation Materials or Litigation Materials covered by this Order.
Standard ofCare
33. The recipient of any Confidential Information, Highly Confidential Information, or
Highly Confidential - Source Code shall maintain such material in a secure and safe area and
shall exercise a standard of due and proper care with respect to the storage, custody, use,
and/or dissemination sufficient to safeguard against unauthorized or inadvertent disclosure of
such material. Confidential Information, Highly Confidential Information, or Highly
Confidential - Source Code shall not be copied, reproduced, extracted or abstracted, except
for the purpose ofthe conduct of the Action or as otherwise provided by this Order. All such
copies, reproductions, extractions, and abstractions shall be subject to the terms of this Order
and be clearly marked to reflect their designation.
Right to Seek Modification
34. Nothing in this Order limits any Person, including members of the public, a Party, or a Page 32 PageID#
Protected Person, from seeking:(1) further or additional protections of any of its materials, or
(2) modification of this Order upon motion duly made pursuant to the Rules of this Court,
including, without limitation, an order that certain material not be produced at all or is not
admissible evidence in the Action or any other proceeding.
The Privacy Act
35. Any order of this Court requiring the production of any Document,information, or
transcript of testimony constitutes a court order within the meaning of the Privacy Act,U.S.C. § 552a (b)(ll).
Persons Bound by This Order
36. This Order shall be binding on the Parties to the Action, their attorneys, and their
successors, personal representatives, administrators, assigns, parents, subsidiaries, divisions,
affiliates, employees, agents, retained consultants and experts, and any persons or
organizations over which they have direct control, and any Non-Party, to the extent such NonParty has agreed to be bound by this Order.
37. All persons subject to this Order are reminded that this Order may be enforced by
the Court's full powers of criminal and civil contempt.
IT IS HEREBY SO ORDERED this ^^ day of
,2023.
./S/
John F. Anderson
United States Magistrate Judge Page 33 PageID#
APPENDIX A(NON-PARTY CONFIDENTIALITY AGREEMENT)
UNITED STATES OF AMERICA,et al.
Civil Action No.: 1:23-CV-00108-LMB-JFA
Plaintiffs,
V.
GOOGLE LLC,
Defendant.
AGREEMENT rONrFRNTNO CONFIDENTIAMTY
am employed by
as
I hereby certify that:
1. I have read the Protective Order("Order") entered in the above-captioned action (this
"Action") and understand its terms.
2. I agree to be boimd by the terms ofthe Order entered in this Action.
3. I agree to use the information provided to me only as permitted in the Order.
4. I understand that my failure to abide by the terms of the Orderentered in this Action may
subject me to civil and criminal penalties for contempt ofcourt.
5. I submit to the jurisdiction of this Court, and specifically the United States District Court
for the Eastern District of Virginia, solely for the purpose of enforcing the terms ofthe
Order entered in the above-captioned action and freely and knowingly waive any right IPage 34 PageID#
may otherwise have to object to the jurisdiction ofsaid court.
Signature
DatePage 35 PageID#
APPENDIX B
UNITED STATES OF AMERICA,et ai.
Civil Action No.: 1:23-CV-00108-LMB-JFA
Plaintiffs,
V.
GOOGLE LLC,
Defendant.
PROTErTTVE ORDERi SOURCE rODE PROTOCOL
Restrictions on those who may view Source Code
1. Unless otherwise ordered by the Court or permitted in writing by the Designating Party,a
Receiving Party may disclose any information or item designated Highly Confidential - Source
Code only to:
a)
the Receiving Party's Outside Counsel of Record in this action, as well as
employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
information for this litigation and who have signed the "Agreement Concerning Confidentiality"
that is attached to the Protective Order as Appendix A;
b)
Plaintiffs' Counsel, if one or more Plaintiffs is the Receiving Party, except that
access by non-attomeys shall be limited to personnel to whom it is reasonably necessary to
disclose the information for this litigation and who have signed the "Agreement Concerning
Confidentiality" that is attached to the Protective Order as Appendix A;Page 36 PageID#
c)
up to five Experts^ (for the avoidance of doubt, the Parties can agree to allow
such disclosure to more than five Experts of the Receiving Party) of the Receiving Party(1)to
whom disclosure is reasonably necessary for this litigation,(2) who have signed the "Agreement
Concerning Confidentiality"(Appendix A), and(3)as to whom the procedures set forth in
Paragraph 2 below and specifically identified as eligible to access Highly Confidential - Source
Code Information or Items, have been followed;
d)
the Court and its personnel;
e)
stenographic reporters, videographers and their respective staff who have signed
the "Agreement Concerning Confidentiality"(Appendix A)and are transcribing or videotaping
a deposition wherein Highly Confidential - Source Code Information or Items are being
discussed, provided that such reporters and videographers shall not retain or be given copies of
any portions of the source code, which if used during a deposition, will not be attached as an
exhibit to the transcript but instead shall be identified only by its production numbers.
f)
while testifying at deposition or trial in this action only:(i) any current officer,
director, or employee of the Producing Party or original source ofthe information;(ii) any
person designated by the Producing Party to provide testimony pursuant to Rule 30(b)(6) of the
Federal Rules of Civil Procedure; and/or (iii) any person who authored, previously received
(other than in connection with this litigation), or was directly involved in creating, modifying.
^ "Expert" means any Person retained by a Party to serve as a testifying or consulting expert in this
Action, including any employees of the firm with which the expert or consultant is associated and
independent contractors who assist the expert's work in the Action, provided that any such
testifying expert, consulting expert, employee, or independent contractor shall first execute an
Agreement Concerning Confidentiality agreeing to be bound by the terms of this Order in the form
of Appendix A attached hereto and comply with all provisions ofthis Source Code Protocol
including by supplying the information needed for compliance with the Process for Requesting To
Disclose Source Code set forth below.Page 37 PageID#
or editing the Highly Confidential - Source Code Information or Items, as evident from its face
or reasonably certain in view of other testimony or evidence. Persons authorized to view
Highly Confidential - Source Code Information or Items pursuant to this sub-paragraph shall
not retain or be given copies of the Highly Confidential - Source Code Information or Items
except while so testifying.
Processfor Requesting to Disclose Source Code
2. Unless otherwise ordered by the court or agreed to in writing by the Designating Party, a
Party that seeks to disclose to an Expert(as defined in this Order) any information or item that
has been designated Highly Confidential - Source Code pursuant to paragraphs 1(b) first must
make a written request to the Designating Party that(1)identifies the general categories of
Highly Confidential- Source Code information that the Receiving Party seeks permission to
disclose to the Expert,(2)sets forth the full name of the Expert and the city and state of his or
her primary residence,(3)attaches a copy of the Expert's current resume,(4)identifies the
Expert's current employer(s),(5)identifies each person or entity from whom the Expert has
received compensation or funding for work in his or her areas ofexpertise or to whom the expert
has provided professional services, including in connection with a litigation, at any time during
the preceding five years, and(6)identifies(by name and number of the case, filing date, and
location ofcourt) any litigation in connection with which the Expert has offered expert
testimony, including through a declaration, report, or testimony at a deposition or trial, during the
preceding five years.
3. A Party that makes a request and provides the information specified in the preceding
respective paragraphs may disclose the subject Highly Confidential - Source Code to the
identified Expert unless, within 14 days of delivering the request, the Party receives a writtenPage 38 PageID#
objection from the Designating Party. Any such objection must set forth in detail the grounds on
which it is based.
4. A Party that receives a timely written objection must meet and confer with the
Designating Party (through direct voice to voice dialogue) to try to resolve the matter by
agreement within seven days of the written objection. If no agreement is reached, the Party
seeking to make the disclosure to the Expert may file a motion in accordance with Local Rules
and Individual Practices seeking permission from the court to do so. Any such motion must
describe the circumstances with specificity, set forth in detail the reasons why the disclosure to
the Expert is reasonably necessary, assess the risk of harm that the disclosure would entail, and
suggest any additional means that could be used to reduce that risk. In addition, any such motion
must be accompanied by a competent declaration describing the parties' efforts to resolve the
matter by agreement (i.e., the extent and the content of the meet and confer discussions) and
setting forth the reasons advanced by the Designating Party for its refusal to approve the
disclosure.
5. In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden
of proving that the risk of harm that the disclosure would entail (under the safeguards proposed)
outweighs the Receiving Party's need to disclose the Protected Material to its Expert.
Restrictions on those who may see Source Code (Patent and Acquisition Bars)
6. Absent written consent from the Producing Party, any individual who receives access to
information designated Highly Confidential - Source Code by the Producing Party shall not be
involved in the prosecution of patents or patent applications relating to the subject matter of this
action, including without limitation the patents related to the subject matter ofthis action and
any patent or application claiming priority to the patents related to the subject matter of this
action, before any foreign or domestic agency,including the United States Patent and Trademark
4Page 39 PageID#
Office ("the Patent Office"). For purposes of this paragraph,"prosecution" means directly or
indirectly drafting, amending, or advising others as to the drafting or amending of patent claims.
To avoid any doubt,"prosecution" as used in this paragraph does not include representing a
party challenging or defending a patent before a domestic or foreign agency (including, but not
limited to, a reissue protest, ex parte reexamination, inter partes reexamination, inter partes
review, post grant review or covered business method review). This Prosecution Bar shall begin
when access to Source Code information is first received by the affected individual and shall end
two(2) years after final termination of this action.
7. Absent written consent from the Producing Party, any individual who receives access to
information designated Highly Confidential - Source Code by the Producing Party shall not(i)
participate in the acquisition of patents or patent applications relating to the subject matter ofthis
action for the purposes of assertion against Google LLC; or (ii) advise or counsel clients
regarding the same. This Acquisition Bar shall not prohibit counsel from advising clients on
other legal matters involving patents, including validity and settlement negotiations. This
Acquisition Bar shall begin when access to Source Code information is first received by the
affected individual and shall end two(2) years after final termination of this action.
Processfor Reviewing Source Code
8. To the extent production of source code becomes necessary in this case, a Producing
Party may designate material as Highly Confidential - Source Code if it comprises, includes, or
substantially discloses confidential, proprietary or trade secret source code or algorithms. This
material may include, among things, technical design documentation that comprises, includes, or
substantially discloses source code or algorithms.
9. Protected Material designated as Highly Confidential - Source Code shall be subject to allPage 40 PageID#
of the protections herein including the Prosecution Bar set forth in Paragraph 6 and the
Acquisition Bar set forth in Paragraph 7, and may be disclosed only as set forth in Paragraph 1.
10. Any source code produced in discovery shall only be made available for inspection, not
produced except as set forth below, in a format allowing it to be reasonably reviewed and
searched, during normal business hours or at other mutually agreeable times, at(1)an office of
the Producing Party or the Producing Party's primary outside counsel ofrecord or(2)another
mutually agreed upon location. The source code shall be made available for inspection on a
secured computer(the "Source Code Computer")in a secured, locked room without Internet
access or network access to other computers, and the Receiving Party shall not copy, remove, or
otherwise transfer any portion of the source code onto any recordable media or recordable
device. The Producing Party will make a good faith effort to provide legitimate review tools to
the Source Code Computer as requested by the Receiving Party. The Receiving Party shall
provide a license to the requested review tools should the Producing Party not already have one.
The secured computer shall have disk encryption and be password protected. Use or possession
of any input/output device (e.g., USB memory stick, mobile phone or tablet, camera or any
camera-enabled device, CD,floppy disk, portable hard drive, laptop, or any device that can
access the Internet or any other network or external system, etc.) is prohibited while accessing
the computer containing the source code. All persons entering the locked room containing the
source code must agree to submit to reasonable security measures to ensure they are not carrying
any prohibited items before they will be given access to the locked room. The computer
containing source code will be made available for inspection during regular business hours(9:A.M. to 5:00 P.M. local time), upon reasonable notice to the producing party, which shall not be
less than 3 business days in advance ofthe requested inspection. The Producing Party may
visually monitor the activities of the Receiving Party's representatives during any source code
6Page 41 PageID#
review, but only to ensure that there is no unauthorized recording, copying, or transmission of
the source code.
11. The Receiving Party may request paper copies of limited portions of source code, but
only if and to the extent reasonably necessary for the preparation of court filings, pleadings,
expert reports, or other papers, or for deposition or trial and except to the extent allowed in
Paragraph 16. The Receiving Party shall not request paper copies for the purposes of reviewing
the source code other than electronically as set forth in Paragraph 10 in the first instance. The
Producing Party shall undertake to produce the requested material as soon as possible after it is
requested, but in no event more than 5 business days after the request, and the Producing Party
will provide the requested material on watermark or colored paper(which shall not prevent the
creation oflegible copies made only as authorized herein) bearing Bates numbers and the legend
Highly Confidential- Source Code unless objected to as discussed below. At the inspecting
Party's request or the request of an Expert retained by the inspecting Party to whom disclosure of
material designated Highly Confidential - Source Code is permitted, additional sets(or subsets)
of printed source code may be requested and provided by the Producing Party within 5 business
days ofthe request. The Producing Party may challenge the amount ofsource code requested in
hard copy form pursuant to the dispute resolution procedure and timeframes set forth in
Paragraph 13 of the Protective Order, whereby the Producing Party is the "Challenging Party"
and the Receiving Party is the "Designating Party" for purposes of dispute resolution. Contested
printouts do not need to be produced to the Receiving Party until the matter is resolved by the
Court.
12. The Receiving Party shall maintain a record of any individual who has inspected any
portion ofthe source code in electronic or paper form. The Receiving Party shall maintain all
printed portions of the source code in a secured, locked area under the direct control of counsel
7Page 42 PageID#
(or outside experts or consultants who have been approved to access source code)responsible for
maintaining the security and confidentiality of the designated materials. Any paper copies
designated Highly Confidential - Source Code shall be stored or viewed only at(i)the offices or
working locations of outside counsel for the Receiving Party,(ii) the offices or working locations
of outside experts or consultants who have been approved to access source code;(iii) the site
where any deposition is taken (iv) the Court; or(v)any intermediate location necessary to
transport the information to a hearing, trial or deposition. Except as provided in Paragraph 16 of
this Appendix, the Receiving Party shall not create any electronic or other images ofthe paper
copies and shall not convert any of the information contained in the paper copies into any
electronic format. Any printed pages ofsource code, and any other documents or things
reflecting source code that have been designated by the producing party as Highly Confidential -
Source Code may not be copied, digitally imaged or otherwise duplicated, except the Receiving
Party may make additional paper copies if such additional copies are necessary to prepare court
filings, pleadings, or other papers(including a testifying expert's expert report) or necessary for
deposition, or as provided below in Paragraph 16. Any paper copies used during a deposition
shall be retrieved by the Receiving Party at the end of each day and must not be given to or left
with a court reporter or any other unauthorized individual.
13. The Receiving Party's outside counsel and/or expert shall be entitled to take notes
relating to the source code but may not copy any portion of the source code into the notes. No
copies of all or any portion ofthe source code may leave the room in which the source code is
inspected except as otherwise provided herein. Further, no other written or electronic record of
the source code is permitted except as otherwise provided herein.
14. A list of names of persons who will view the source code will be provided to thePage 43 PageID#
producing party in conjunction with any written (including email) notice requesting inspection.
The Producing Party shall maintain a daily log of the names of persons who enter the locked
room to view the source code and when they enter and depart. The Receiving Party shall be
entitled to a copy of the log.
15. The Receiving Party's outside counsel shall maintain a log of all copies ofthe source
code in its possession or in the possession of its retained consultants. The log shall include the
names ofthe recipients and reviewers of copies and locations where the copies are stored. Upon
request by the Producing Party, the Receiving Party shall provide reasonable assurances and/or
descriptions ofthe security measures employed by the Receiving Party and/or person that
receives a copy ofany portion of the source code. The Producing Party shall be entitled to a copy
ofthe log.
16. Except as provided in this paragraph, the Receiving Party may not create electronic
images,or any other images, of the source code from the paper copy for use on a computer (e.g.,
may not scan the source code to a PDF,or photograph the code). The Receiving Party may
create an electronic copy or image of limited excerpts of source code only to the extent
necessary in a pleading, exhibit, expert report, discovery document, deposition transcript, other
Court document, or any drafts of these documents("Source Code Documents"). The Receiving
Party shall only include such excerpts as are reasonably necessary for the purposes for which
such part of the Source Code is used. Images or copies of Source Code shall not be included in
correspondence between the parties(references to production numbers shall be used instead) and
shall be omitted from pleadings and other papers except to the extent permitted herein. The
Receiving Party may create an electronic image of a selected portion of the Source Code only
when the electronic file containing such image has been encrypted using commerciallyPage 44 PageID#
reasonable encryption software including password protection. The communication and/or
disclosure of electronic files containing any portion ofsource code shall at all times be limited to
individuals who are authorized to see source code under the provisions of this Protective Order.
Additionally, all electronic copies must be labeled Highly Confidential - Source Code.
17. To the extent portions ofsource code are quoted in a Source Code Document, either(1)
the entire document will be stamped and treated as Highly Confidential - Source Code or(2)
those pages containing quoted Source Code will be separately bound, and stamped and treated as
Highly Confidential - Source Code.
10
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PlainSite Cover Page
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Case 1:23-cv-00108-LMB-JFA Document 203 Filed 05/11/23 Page 1 of 44 PageID# 1420
THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES OF AMERICA,et aL,
Plaintiffs,
V.
)
)
)
)
) Civil Action No.: 1:23-CV-00108-LMB-JFA
GOOGLE LLC,
Defendant.
)
)
)
)
)
MOniFIED PROTECTIVE ORDER
In the interests of:(i) ensuring efficient and prompt resolution of this Action;
(ii) facilitating discovery by the Parties litigating this Action; and (iii) protecting certain
information from improper disclosure or use, the Court enters the following Protective Order, as
defined below in Paragraph 1(a). Unless otherwise specified, days will be computed according to
Federal Rule of Civil Procedure 6(a).
The Court, upon good cause shown and pursuant to Fed. R. Civ. P. 26(c)(1), ORDERS as
follows:
Definitions
I. As used herein:
(a)
"Action" means the action filed in this Court under the caption United States,
et at. V. Google LLC, l:23-cv-00108-LMB-JFA, as well as any additional actions
subsequently transferred and/or centralized with this Action, including any related
discovery, pretrial, trial, post-trial, or appellate proceedings. For the avoidance of doubt.
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"Action" excludes pre-Complaint investigations by one or more Plaintiffs into potential
anticompetitive conduct by the Defendant.
(b)
"Confidential Information" or "Confidential" means information (regardless of
how it is generated, stored or maintained) or tangible things that constitute a trade secret or
other non-public confidential financial, technical, research, sales, marketing, development, or
commercial information and that have been so designated, or any Document, transcript, or
other material containing such information that has not been published or otherwise made
publicly available.' In addition, a Designating Party may designate as Confidential any
information or items made publicly available in violation ofa court order to keep such
information confidential, that the Designating Party believes should receive Confidential
treatment. Confidential Information includes (i) information copied or extracted, summarized
or compiled from Confidential Information, and (ii) testimony, conversations, or
presentations by Parties or their Counsel that reveal Confidential Information.
(c)
"Competitive Decision-Making" means the action or process of making a
business decision or resolving a non-legal question relating to a competitor, potential
competitor, customer, or distribution partner regarding contracts, marketing, pricing,
product, service development or design, product, or service offering, research and
development, mergers and acquisitions, or licensing, acquisition, funding, or enforcement of
intellectual property. It does not include legal advice provided in connection with litigation,
potential litigation, or regulatory matters, nor does it include work performed as part of a
trial team or to keep management advised on the progress or status of litigation, potential
'For the avoidance of doubt, the Receiving Party's belief that material designated as
Confidential does not meet this standard shall not deprive such material ofthe protections
afforded to Confidential Information. Any challenge to a designation is subject to Paragraph 13.
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litigation, or regulatory matters.
(d)
"Defendant" means Google LLC, as well as its parents, divisions,
subsidiaries, affiliates, partnerships and joint ventures, and all directors, officers,
employees, agents (including counsel), and representatives ofthe foregoing.
(e)
"Designated In-House Coimsel" means In-House Counsel designated by
Defendant who may be authorized to access Highly Confidential Information pursuant to
Paragraph 19 ofthis Order.
(f)
"Disclosed" means shown, divulged, revealed, produced, described,
transmitted or otherwise communicated, in whole or in part.
(g)
"Document" means any document or electronically stored information, as
the term is used in Fed. R. Civ. P. 34(a).
(h)
"Highly Confidential Information" or "Highly Confidential," as defined herein,
is information that, if disclosed publicly or to a Party, is likely to cause the Producing Party
material and significant competitive or commercial harm, and that has been so designated.^
Subject to the foregoing. Highly Confidential Information may include trade secrets,
including algorithms and Source Code; non-public, commercially sensitive customer lists;
non-public financial, marketing, or strategic business planning information; current or future
non-public information regarding prices, costs, or margins; information relating to research,
development testing of, or plans for existing or proposed future products; evaluation ofthe
strengths and vulnerabilities ofa Protected Person's product offerings, including non-public
pricing and cost information; confidential contractual terms, proposed contractual terms, or
^ For the avoidance of doubt, the Receiving Party's belief that material designated as Highly
Confidential does not meet this standard shall not deprive such material ofthe protections afforded
to Highly Confidential Information. Any challenge to a designation is subject to Paragraph 13.
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negotiating positions (including internal deliberations about negotiating positions);
information relating to pending or abandoned patent applications that have not been made
available to the public; personnel files; sensitive personally identifiable information; and
communications that disclose any Highly Confidential Information. Highly Confidential
Information includes (i) information copied or extracted, summarized or compiled from
Highly Confidential Information, and (ii) testimony, conversations, or presentations by
Parties or their Counsel that would reveal Highly Confidential Information. A Designating
Party may designate as Highly Confidential any information or items made publicly available
in violation of a court order to keep such information confidential, that the Designating Party
believes should receive Highly Confidential treatment. In addition, if a Protected Person (i)
has produced Investigation Materials or(ii) is required by subpoena or court order to produce
information that would cause it material and significant competitive or commercial harm, but
that information does not specifically fall into one ofthe categories of information listed in
this paragraph, upon a compelling showing, it may seek a court order that such information is
Highly Confidential. If a motion is made pursuant to this paragraph and is related to a
subpoena or court order, it must be filed no later than the due date to respond to the subpoena
or court order. If a Protected Person seeks additional protection pursuant to this paragraph
from the Court, the materials for which additional protection has been sought will not be
provided to other Persons, aside from outside counsel, until the Court has ruled.
(i)
"In-House Counsel" means any lawyer employed by the Defendant as well as
any paralegals, administrative assistants, and clerical and administrative personnel
supervised by that lawyer and employed by the Defendant. In-House Counsel, however, does
not include: 1) attorneys employed by the Plaintiffs; or 2) Outside Counsel.
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(j)
"Investigation" means any pre-complaint inquiry by one or more Plaintiffs
into potential anticompetitive conduct by the Defendant related to open web display
advertising.
(k)
"Investigation Material" means non-privileged documents, testimony or other
materials that:(i) any Non-Party provided to any Party, either voluntarily or under
compulsory process, relating to the Investigation;(ii) constitute any commimication between
any Party and any Non-Party in connection with and during the Investigation;(iii) any Party
provided to any Non-Party relating to the Investigation; and/or(iv) a Defendant, or affiliated
person or entity, provided to a Plaintiff relating to the Investigation. For the avoidance of
doubt, the Investigation Materials are governed by the terms of this Order. To the extent that
any Investigation Materials are clawed back for any reason, the procedures set forth at
Paragraph 12 ofthis Order shall apply and, as to Plaintiffs, such procedures will supersede
any other applicable clawback procedures governing the Investigation Materials.
Investigation Materials shall bedesignated as Highly Confidential by default.
(1)
"Litigation Materials" means non-privileged documents, testimony, or other
materials that:(i) any Non-Party provides to any Party, either voluntarily or under
compulsory process, in connection with and during the pendency of the Action;(ii) constitute
any communication between any Party and any Non-Party in connection with and during the
pendency ofthe Action;(iii) Defendant provides to any Plaintiff in connection with and
during the pendency ofany of the Action;(iv) any Plaintiff provides to Defendant in
connection with and during the pendency of the Action;(v)the Department of Justice
provides to any federal governmental agency in connection with and during the pendency of
this Action; and/or(vi)any federal govemmental agency provides to the Department of
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Justice in connection with and during the pendency of this Action.
(m)
"Non-Party" means any natural person, partnership, corporation, association,
or other legal entity not named as a Party in the Action,
(n)
"Outside Counsel" means the attorneys employed by outside law firms who are
retained to represent or advise a Party, as well as any paralegals, administrative assistants,
and clerical and administrative personnel supervised by those lawyers and employed by
those Outside Counsel. To the extent any Outside Counsel has not filed an appearance in the
Action("Non-Appearing Law Firm"), a Party shall notify the other Parties ofthe name ofthe
Non- Appearing Law Firm at least seven days before any attorneys of the Non-Appearing
Law Firm obtain access to any Investigation Materials and/or Litigation Materials. Attorneys
ofthe Non- Appearing Law Firm who are given access to Investigation Material and/or
Litigation Material, shall first complete and execute an Agreement Conceming
Confidentiality agreeing to be bound by the terms of this Order in the form of Appendix A
attached hereto.
(o)
"Party" means any Plaintiff or Defendant in the Action, and in the case of
each State Plaintiff, means the Attorney General's Office of such State Plaintiff. "Parties"
collectively means all Plaintiffs and Defendant in the Action.^
(p)
"Plaintiffs" means the Plaintiffs in the Action, including all of their
employees, agents, and representatives.
(q)
"Plaintiffs' Counsel" includes:(i) any employee of the Antitrust Division of
the U.S. Department ofJustice who is assigned to work on this Action and/or any
^ For purposes of this Protective Order, the term "Party" shall be construed in a manner
consistent with the Court's ruling on the Joint Proposed Discovery Plan. Dkt. 94.
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employee ofthe U.S. Department ofJustice who is responsible for supervising work
related to this Action; and (ii) any employee ofa State Plaintiffs' Attorney General's
Office (including retained attorneys and contract attorneys). For the avoidance of doubt,
"employee" as used in this sub-paragraph includes, but is not limited to, attorneys,
paralegals, economists, administrative assistants, IT and support staff, and clerical and
administrative personnel;
(r)
"Person" means any natural person, corporate entity, business entity,
partnership, association,joint venture, governmental entity, or trust.
(s)
"Producing Party" means a Party who produced or produces
Investigation Material, Litigation Material, or Source Code.
(t)
"Protected Person" means any Person (including a Party or a Non-Party)
that either voluntarily or under compulsory process, has provided or provides:(i)
Investigation Materials,(ii) Litigation Materials; or (iii) Source Code.
(u)
"Receiving Party" means a Party who received Investigation Material,
Litigation Material, or Source Code.
(v)
"Source Code" means extremely sensitive information or items representing
computer code and associated comments and revision histories, formulas, engineering
specifications, or schematics that define or otherwise describe in detail the algorithms or
structure ofsoftware or hardware designs, disclosure of which to another Party or Non-Party
would create a substantial risk of serious harm that could not be avoided by less restrictive
means. To the extent production of Source Code becomes necessary in this case, a Party
who produces Source Code may designate it as "Highly Confidential - Source Code." The
protocols for Defendant's production of Source Code, and the review ofsuch Source Code,
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appear in Appendix B to this Order.
(w)
"State Plaintiffs" means the States of California, Colorado, Connecticut, New
Jersey, New York, Rhode Island, and Tennessee, and the Commonwealth of Virginia, and
any other state thatjoins the Action, by and through their respective Attomeys General.
(x)
"State Plaintiffs' Counsel" means attomeys employed by the State
Plaintiffs' Attomey General's Office (including retained attomeys and contract
attomeys).
Designation ofHighly ConfidentialInformation and ConfidentialInformation
2. Within two business days of the Court's entry ofthis Order, each Party shall send
by email, facsimile, or ovemight delivery a copy ofthis Order to any Non-Party Protected
Person (or, if represented by counsel, the Non-Party Protected Person's counsel)that
provided Investigation Materials to that Party.
3. Production of Investigation Materials Originating from a Non-Party. If a non-
Party Protected Person determines that this Order does not adequately protect its Confidential
Information, it may, within seven days after receipt of a copy ofthis Order, seek additional
protection from the Court for its Confidential information. If a non-Party Protected Person
timely seeks additional protection from the Court, the Party's obligation to produce that non-
Party Protected Person's documents containing Confidential Information, that is the subject of
the motion, is suspended until a decision is rendered by the Court. If the Court orders the
production ofthe non-Party's documents,the Party will have seven days to make the
production unless a longer period is ordered by the Court.
4. Designation of Investigation Materials as Confidential or Highly Confidential by
Protected Persons. To the extent a Protected Person has already designated Investigation
8
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Materials as Confidential or Highly Confidential, those materials shall retain those existing
designations, subject to any later challenge by a Party, to the extent that Investigation
Materials are reproduced in the Action, all protections afforded to Litigation Materials
pursuant to this Order shall apply.
5. The identity of a Non-Party submitting Highly Confidential Information or
Confidential Information shall also be treated as Highly Confidential Information or
ConfidentialInformation for the purposes of this Order where the submitter has requested
such confidential treatment.
6. Any production of documents or testimony not designated as Confidential or Highly
Confidential Information will not be deemed a waiver of any future claim of confidentiality
conceming such information if it is subsequently designated as Confidential or Highly
Confidential Information. If at any time before trial of this Action, a Protected Person realizes
that it should have designated as Confidential or Highly Confidential Information any
Investigation Materials, Litigation Materials, or Source Code that Person previously produced,
it may so designate such Documents, testimony, or other materials by notifying the Parties in
writing, and, to the extent the new designations relate to Documents, an overlay file with the
new designations shall also be provided in accordance with Paragraph 7(g). The Parties shall
thereafter treat the Investigation Materials, Litigation Materials, or Source Code pursuant to
the Protected Person's new designation under the terms of this Order. However,the disclosure
of any information for which disclosure was proper when made will not be deemed improper
regardless ofany such subsequent confidentiality designation.
7. Designation of Litigation Materials as Highly Confidential or Confidential by
Protected Persons. The following procedures govem the process for Protected Persons to
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designate as Highly Confidential or Confidential any information that they disclose in this
Action, including, but not limited to, information in response to requests under Fed. R. Civ.
P. 30,31,33, 36, and 45, and Documents disclosed in response to Fed. R. Civ. P. 33(d),
34(b)(2) and (c), or 45:
(a)
Indiscriminate designations are prohibited.
(b)
Testimony. All transcripts of depositions taken in the Action after entry ofthis
Order will be treated as Highly Confidential Information in their entirety for 45 days after the
date ofthe deposition, or until 5 days before trial, whichever date is earlier. Parties will be
responsible for obtaining the deposition transcript for any Party deponents. For Non-Party
deponents, if requested by the Non-Party deponent, the Party who noticed the deposition shall,
within 5 business days of being provided a final transcript (subject to any errata) of the
deposition (or as soon as reasonably possible after the request is made), provide the final
transcript(subject to any errata) to the Non-Party deponent(or the Non-Party deponent's
counsel, if applicable).
Within 45 days following the date ofthe deposition, the deponent, whether a
Non-Party or a Party, may designate, subject to the provisions of this Order, Highly
Confidential Information or Confidential Information any portion of the deposition transcript,
by page(s) and line(s), and any deposition exhibits provided by the deponent or the deponent's
employer or its affiliates, or containing the Highly Confidential Information or Confidential
Information of the deponent or the deponent's employer or its affiliates (regardless of who
provided or produced the Document). To be effective, such designations must be provided in
writing to all Parties. All transcripts of depositions taken in this Action after entry of this Order
will be treated as Highly Confidential Information in their entirety until the deadline for the
10
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deponent to designate portions of the transcript as Highly Confidential Information has
expired. Further, to the extent that a Party's Highly Confidential or Confidential Documents
were utilized in the deposition, that Producing Party also has 45 days following the date ofthe
deposition to designate any portion of the deposition testimony as Highly Confidential or
Confidential to the extent the deposition testimony discloses or relates to Highly Confidential
or Confidential Documents used at the deposition. To be effective, such designations must be
provided in writing to all Parties' counsel.
When a Party is entitled under this Order to question a deponent about a
Document or information that has been designated by a Non-Party as Highly Confidential or
Confidential, and such Non-Party is not in attendance at the deposition, the Party that asked
such questions shall designate as Highly Confidential or Confidential the portion ofthe
transcript relating to such Highly Confidential or Confidential Document or information within
45 days following the date ofthe deposition.
(c)
Documents. A Protected Person who designates as Highly Confidential
Information any Document that it produced in this Action must stamp or otherwise mark each
Document containing said information with the designation "HIGHLY CONFIDENTIAL" in
a manner that will not interfere with legibility, including page numbering, or audibility unless
such Document is produced in native electronic format. A Protected Person who designates as
Confidential Information any Document that it produced in this Action must stamp or
otherwise mark each Document containing said information with the designation
"CONFIDENTIAL" in a manner that will not interfere with legibility, including page
numbering, or audibility. Any Document that contains Confidential Information or Highly
Confidential Information may be so designated in its entirety. To the extent a Document is
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produced in native form, such Documents shall be produced in accordance with Paragraph 7(d)
below.
(d)
Electronic Documents and Data. Where a Protected Person produces
Confidential or Highly Confidential Information contained in electronic files and Documents
in native electronic format, such electronic files and Documents shall be designated by the
Protected Person for protection under this Order by appending to the file names or designators'
information indicating whether the file contains Highly Confidential Information or
Confidential Information, or by any other reasonable method for appropriately designating
such information produced in electronic format, including by including a slip sheet associated
with the electronic file or by making such designations in reasonably accessible metadata
associated with the files. Where Highly Confidential Information or Confidential Information
is produced in electronic format on a disk or other medium that contains exclusively
confidential information, the "HIGHLY CONFIDENTIAL" or"CONFIDENTIAL"
designation may be placed on the disk or other medium. When electronic files or Documents
in native form are printed for use at a deposition, in a court proceeding, or for provision in
printed form to any person who may receive such files in accordance with this Order, the Party
printing the electronic files or Documents shall include the slip sheet identifying the electronic
file or Document as "HIGHLY CONFIDENTIAL" or "CONFIDENTIAL" along with the
production number or Bates number and designation associated with the native file, or shall
affix a legend to the printed Document saying "HIGHLY CONFIDENTIAL" or
"CONFIDENTIAL" and include the production number or Bates number and designation
associated with the native file.
(e)
Upward Designation of Litigation Materials Produced by Other Parties or Non-
12
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Parties. A Protected Person may upward designate (i.e., change any Litigation Materials
produced without a designation to a designation of"Confidential" or "Highly Confidential" or
designate any Litigation Materials produced as "Confidential" to a designation of"Highly
Confidential") any Litigation Materials produced by another Protected Person, provided that
said Litigation Materials contains the upward designating Protected Person's own Confidential
Information or Highly Confidential Information.
(f)
Upward designation shall be accomplished by providing written notice to the
Parties and the relevant disclosing Protected Person identifying the Litigation Materials to be
re- designated within 120 days from the date ofthe production containing the materials the
Protected Person seeks to upwardly designate, or 30 days prior to trial in the Action,
whichever is earlier. Such notice must identify(by Bates number, or in the event there is no
Bates number, by other individually identifiable information) each Document the Protected
Person wishes to upward designate, and include an explanation as to why the Protected Person
wishes to upward designate such Documents, and why the existing confidentiality designation
is insufficient. The Protected Person shall also provide an overlay file reflecting the new
designations in accordance with Paragraph 7(g). Failure to upward designate within 120 days,
alone, will not prevent a Protected Person from obtaining the agreement of the disclosing
Protected Person to upward designate certain Litigation Materials or from moving the Court
for such relief. Any Party may object to the upward designation of Litigation Materials
pursuant to the procedures set forth in Paragraph 13 regarding challenging designations.
(g)
Overlav Files. To the extent this Order requires a Protected Person to provide an
overlay file in connection with a new or altered confidentiality designation, that Protected
Person shall have five business days from the date of the changed designation to produce an
13
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overlay file. In the interim, the Parties shall take care to treat the Documents at issue as if the
new designation applies. For the avoidance of doubt, a Party does not violate this provision
where it in good faith attempts to comply with the new designation.
8. In the event that a Party is required to produce Documents designated by a Non-Party
as Confidential or Highly Confidential Information, then the Party shall:
(a)
promptly notify in writing the Party seeking the Highly Confidential
Information or Confidential Information that some or all of the information requested is
subject to a protective order;
(b)
promptly notify the Non-Party that its Highly Confidential Information or
Confidential Information is being requested and make the information requested available
for inspection by the Non-Party or Party; and
(c)
promptly provide the Non-Party with a copy ofthis Order, the relevant
discovery request(s), and a reasonably specific description ofthe information requested.
The purpose of this provision is to alert a Party to the existence of
confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect its
confidentiality interests in this Court.
9. If the Non-Party or Party fails to object or seek a protective order from this Court
within 14 days ofreceiving the notice and accompanying information, the Non-Party or
Party's Highly Confidential Information or Confidential Information responsive to the
discovery request may be produced. If the Non-Party or Party timely seeks a protective order,
its Highly Confidential Information or Confidential Information shall not be produced before
a determination by the Court. Absent an order to the contrary, the Non-Party or Party shall
bear the burden and expense of seeking protection in this Court of its Highly Confidential
14
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Information or Confidential Information. The terms of this Order are applicable to information
produced by a Non-Party or Party in the Action and designated as Highly Confidential
Information or Confidential Information. Such information produced by Non-Parties or Parties
in connection with this Action is protected by the remedies and relief provided by this Order.
Nothing in these provisions should be construed as prohibiting a Non-Party or Party from
seeking additional protections.
10. Unauthorized disclosure of Confidential Information, Highly Confidential
Information, or Highly Confidential - Source Code. In the event of a disclosure of any
Confidential Information, Highly Confidential Information, or Highly Confidential - Source
Code to any person(s) not authorized to receive such disclosure under this Order, the Party
who discovers such unauthorized disclosure shall:(a) promptly notify the Protected Person
whose material has been disclosed and provide to such Protected Person all known relevant
information concerning the nature and circumstances of the disclosure. If it is readily
discernible which Party is responsible for the disclosure, the disclosing Party shall also
promptly take all reasonable measures to retrieve the improperly disclosed material and to
ensure that no further unauthorized disclosure and/or use thereof is made;(b)inform the
Person(s) to whom unauthorized disclosure was made of all the terms of this Order; and (c)
request such Person(s) execute the Agreement Concerning Confidentiality in the form of
Appendix A attached hereto. If it is not readily discernible which Party is responsible for the
disclosure, the Parties shall work together to:(a) promptly take all reasonable measures to
retrieve the improperly disclosed material and to ensure that no further unauthorized
disclosure and/or use thereofis made;(b)inform the Person(s) to whom unauthorized
disclosure was made of all the terms ofthis Order, and (c)request such Person(s) execute the
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Agreement Concerning Confidentiality in the form of Appendix A attached hereto.
11. Unauthorized or inadvertent disclosure shall not change the confidential status of any
disclosed material or waive the Producing Party's right to maintain the disclosed material as
containing Confidential Information, Highly Confidential Information, or Highly
Confidential- Source Code.
Privileged Investigation Materials and Litigation Materials
12.(a)
The production of privileged or work-product protected Documents,
electronically stored information ("ESI"), or information, whether inadvertent or otherwise, is
not a waiver ofthe privilege or protection from discovery in this case or in any other federal
or state proceeding. This Order shall be interpreted to provide the maximum protection
allowed by Federal Rule of Evidence 502(d). Federal Rule of Evidence 502(b)shall not apply
to any disputes regarding Investigation Material or Litigation Material.
(b)
Nothing contained herein is intended to or shall serve to limit a Party's right
to conduct a review of Documents, ESI (including metadata), or information for relevance,
responsiveness and/or segregation of privileged and/or protected information before
production.
(c)
If the Producing Party becomes aware that it has produced information
protected by the attorney-client privilege or any other privilege or immunity, the Producing
Party will promptly notify each Receiving Party in writing ofthe production and the basis of
the privilege being asserted. After being notified, a Party must promptly return, sequester,'* or
destroy the specified information and any copies or summaries of the information that it has;
must not use or disclose the information until the claim is resolved; must take reasonable steps
For the avoidance of doubt, sequestration prohibits the Party in possession from further review
ofthe material once a claim of privilege is made except as otherwise provided in this Paragraph.
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to retrieve the information ifthe party disclosed it before being notified; and may promptly
present the information to the court under seal for a determination of the claim in camera. Any
challenge to a claim of privilege contemplated by this Paragraph must be made promptly. The
Producing Party must preserve the information until the claim is resolved.
(d)
If a Receiving Party becomes aware that it is in receipt of information or
material that it knows or reasonably should know is privileged, counsel for the Receiving
Party shall immediately take steps to:(i) stop reading such information or material;(ii) notify
counsel for the Producing Party ofsuch information or material;(iii) collect all copies of
such information and material; and (iv) return to the Producing Party and/or destroy such
information or material(and, in the case of destruction, certify that fact to the Producing
Party if requested to do so). Any notes or summaries referring or relating to such material
shall be destroyed simultaneously therewith.
(e) This Order is without prejudice to any Protected Person's right to assert that any
Investigation Materials or Litigation Materials are subject to any applicable claim of privilege
or protection, including, but not limited to, the attorney-client privilege and the work-product
doctrine, and it is without prejudice to any Party's right to contest such a claim of privilege or
protection.
Objections to Confidentiality Designations
13. Any Party who objects to any confidentiality designation, or part thereof,(the
"Objecting Party") may,until 30 days before the trial of its Action, provide a wntten notice to
the Protected Person who made such designation (the "Designating Party") and to all Parties
stating with particularity the grounds for the objection. All materials objected to shall continue
to be treated as Confidential Information, Highly Confidential Information, or Highly
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Confidential - Source Code pending resolution of the dispute. Within 10 days of the Objecting
Party's written notice, the Objecting Party and the Designating Party shall attempt to confer to
discuss their respective positions. Ifthe Objecting Party and Designating Party cannot reach an
agreement on the objection within 10 days ofthe Objecting Party's written notice (or another
deadline agreed to by the Objecting Party and the Designating Party), the Objecting Party may
raise the dispute to this Court by filing a motion in accordance with the applicable Local
Rules. If the Court finds the designation of Confidential Information, Highly Confidential
Information, or Highly Confidential - Source Code to have been inappropriate, the challenged
designation shall be considered rescinded, and the Designating Party shall reproduce the
Documents with the revised designations, along with an overlay file in accordance with
Paragraph 7(g). Notwithstanding anything else contained in this Order, the Parties reserve
their rights under Fed. R. Civ. P. 37.
Disclosure ofHighly Confidential Information or Confidential Information
14. Highly Confidential Information may be disclosed only to the following Persons:
(a)
the Court and all Persons assisting the Court in the Action, including law
clerks, court reporters, and stenographic or clerical personnel;
(b)
Outside Counsel for Defendant, except that access by non-attomeys shall
be limited to personnel assigned to work on the Action, whose functions require access
to the information. Such personnel shall not include any employee of a Party;
(c)
Plaintiffs' Counsel, except that access by non-attomeys shall be limited to
personnel assigned to work on the Action, whose functions require access to the
information;
(d)
outside vendors or service providers(such as copy-service providers,
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outside court reporters retained for depositions, document-management consultants, or
lawyers or law firms for document review other than Outside Counsel) and agents or
independent contractors retained by a Party to assist that Party in the Action provided that
they shall first execute an Agreement Concerning Confidentiality agreeing to be bound by
the terms of this Order in the form of Appendix A attached hereto;
(e)
any mediator, arbitrator, or special master that the Parties engage in this Action
or that this Court appoints provided that they shall first execute an Agreement Concerning
Confidentiality agreeing to be bound by the terms of this Order in the form of Appendix A
attached hereto;
(f)
any Person who the Highly Confidential Information itself indicates, or who
the Receiving Party has a good-faith basis to believe, was the author, addressee, recipient,
custodian, or source ofthe Document or Highly Confidential Information.
(g)
any Person who the Highly Confidential Information itself indicates, or who
the Receiving Party has a good-faith basis to believe, had lawful access to the Document or
the Highly Confidential Information;
(h)
during a deposition, any Person who the Highly Confidential Information
itself indicates, or who the Receiving Party has a good-faith basis to believe, had
knowledge of the Highly Confidential Information;
(i)
during a deposition, any current employee ofthe Designating Party;
(j)
any Person retained by a Party to serve as a testifying or consulting expert in
this Action,^ including any employees of the firm with which the expert or consultant is
^ This provision does not apply to any Person retained by a Party to serve as a testifying or
consulting expert, where such person is also an employee of a Party.
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associated and independent contractors who assist the expert's work in the Action, provided
that they shall first execute an Agreement Concerning Confidentiality agreeing to be bound
by the terms of this Order in the form of Appendix A attached hereto;
(k)
outside trial consultants (including, but not limited to, graphics consultants and
mock jurors), provided that they shall first execute an Agreement Concerning Confidentiality
agreeing to be bound by the tenns ofthis Order in the form of Appendix A attached hereto;
(1)
any Person as may be authorized by written agreement of the Designating
Party, by verbal agreement of the Designating Party on the record at a deposition or Court
hearing, or by order ofthe Court.
15. Confidential Information may be disclosed only to the following Persons:
(a)
the Court and all Persons assisting the Court in the Action, including law
clerks, court reporters, and stenographic or clerical personnel;
(b)
Outside Counsel for Defendant, except that access by non-attorneys shall
be limited to personnel assigned to work on the Action, whose functions require access
to the information. Such personnel shall not include any employee of a Party;
(c)
Plaintiffs' Counsel, except that access by non-attorneys shall be limited to
personnel assigned to work on the Action, whose functions require access to the
information;
(d)
the officers, directors, and employees(including In-House Counsel)of
Defendant to whom disclosure is reasonably necessary for this litigation and who have signed
the Agreement Concerning Confidentiality agreeing to be bound by the terms of this Order in
the form of Appendix A attached hereto;
(e)
outside vendors or service providers(such as copy-service providers, outside
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court reporters retained for depositions, document-management consultants, or lawyers or
law firms for document review other than Outside Counsel) and agents or independent
contractors retained by Defendant to assist Defendant in the Action provided that they shall
first execute an Agreement Concerning Confidentiality agreeing to be bound by the terms of
this Order in the form of Appendix A attached hereto;
(f)
any mediator, arbitrator, or special master that the Parties engage in the Action
or that this Court appoints provided that they shall first execute an Agreement Concerning
Confidentiality agreeing to be bound by the terms ofthis Order in the form of Appendix A
attached hereto;
(g)
any Persons who the Confidential Information itself indicates, or who the
Receiving Party has a good-faith basis to believe, was the author, addressee, recipient,
custodian, or source of the Document or Confidential Information;
(h)
any Persons who the Confidential Information itself indicates, or who
the Receiving Party has a good faith basis to believe had lawful access to the
Document or Confidential Information;
(i)
during a deposition, any Persons who the Confidential Information itself
indicates, or who the Receiving Partyhas a good-faith basis to believe, had knowledge ofthe
Confidential Information;
(j)
any Person whose statements or communications are quoted, recounted, or
summarized in a Party's or Non-Party's Documents or Confidential Information, except that
only those portions of the Documents or Confidential Information quoting, recounting, or
summarizing a Person's statements or communications may be disclosed to that Person;
(k)
during a deposition, any current employee of the Designating Party;
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(1)
outside trial consultants (including, but not limited to, graphics consultants and
mock jurors) provided that they shall first execute an Agreement Concerning Confidentiality
agreeing to be bound by the terms ofthis Order in the form of Appendix A attached hereto;
(m)
any Person retained by a Party to serve as a testifying or consulting expert in
these Action,^ including any employees of the firm with which the expert or consultant is
associated and independent contractors who assist the expert's work in the Action, provided
that they shall first execute an Agreement Concerning Confidentiality agreeing to be bound by
the terms of this Order in the form of Appendix A attached hereto;
(n)
any Person as may be authorized by written agreement of the Designating
Party, by verbal agreement of the Designating Party on the record at a deposition or Court
hearing, or by order of the Court.
16. The Parties shall have the right to seek redress from this Court to enforce the
provisions of the Agreement Concerning Confidentiality set forth in Appendix A with respect
to any Person bound by this Order.
17. Each Person described in Paragraphs 14 and 15 of this Order to whom information
designated as Highly Confidential Information or Confidential Information is disclosed must
not disclose that Highly Confidential Information or Confidential Information to any other
Person, except as permitted in this Order.
18. Nothing in this Order:
(a)
limits a Protected Person's use or disclosure of its own information designated
as Highly Confidential Information or Confidential Information;
^ This provision does not apply to any Person retained by a Party to serve as a testifying or
consulting expert, where such Person is also an employee of a Party.
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(b)
prevents disclosure of Highly Confidential Information or Confidential
Information with the consent of the Protected Person that designated the material as
Confidential or Highly Confidential;
(c)
prevents disclosure by a Party of Highly Confidential Information or
Confidential Information:(i)that is or has become publicly known through no fault ofthat
Party;(ii) lawfully acquired by or known to that Party independent of receipt during the
Investigation or in discovery in the Action;(iii) previously produced, disclosed and/or
provided to that Party without an obligation of confidentiality and not by inadvertence or
mistake; or(iv) pursuant to an order of a court or as may be required by regulation;
(d)
prevents counsel from rendering advice to his or her client with respect to
this matter or from generally referring to or relying upon Confidential Information or
Highly Confidential Information in rendering such advice so long as counsel does not
specifically disclose the substance of the Confidential Information or Highly Confidential
Information;or
(e)
prevents Plaintiffs' retention, use, or disclosure of Investigation Materials
outside the context ofthe Action to the extent permitted by applicable law or regulation, for
law enforcement purposes, as required by law,court order, or regulation, or for the purpose of
securing compliance with a Final Judgment in this Action. Any such disclosures shall be
limited to those permitted by applicable law or regulation. Plaintiffs will not disclose any
Litigation Materials produced only during the pendency of the Action to any Non-Party,
except as ordered by a court or as may be required by law or regulation and subject to
Paragraph 28, If Investigation Materials or Litigation Materials are requested for disclosure
under a state's public information act or the equivalent, this Order prohibits disclosure to the
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extent the state's public information act or the equivalent provides an exception for disclosure
of information protected by court order.
Disclosure ofHighly ConfidentialInformation to Designated In-House Counselfor
Parties Based on Need
19. A Party may at any time before the trial of its Action request disclosure of Highly
Confidential Information to Designated In-House Counsel by consent ofthe Designating
Party or motion with the Court. Unless otherwise ordered by the Court or agreed to in writing
by the Designating Party, a Party seeking to disclose Highly Confidential Information to
Designated In-House Counsel must submit in writing to the other Parties and the Designating
Person a written statement that:(1)describes with particularity the Highly Confidential
Information the Party seeks to disclose to Designated In-House Counsel;(2)sets forth the full
name of each Designated In- House Counsel and the city and state of his or her residence,
and (3) describes each Designated In-House Counsel's primary job duties and responsibilities
in sufficient detail to determine if each Designated In-House Counsel is involved in
Competitive Decision-Making. The Party must meet and confer with the Designating Party to
try to resolve the matter by agreement within seven days of the written notice. If no
agreement is reached, the Party may file a motion with the Court. The other Parties and/or the
Designating Party will have seven days to respond to such motion. The Party will not
disclose any Highly Confidential Information to Designated In-House Counsel pending
resolution ofthe dispute. If the Court finds that the Designated In-House Counsel has a
particularized need for access to the Highly Confidential Information that outweighs the risk
of harm to the Designating Party or the public interest, the Party will be permitted to disclose
the Highly Confidential Information to the Designated In-House Counsel.
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Use ofInformation Designated Highly Confidential or Confidential in this Action
20. In the event that any Highly Confidential Information or Confidential Information is
contained in any pleading, motion, exhibit, or other paper filed or to be filed with the Court,
the Court shall be so informed by the Party filing such papers, and such papers shall be filed
under seal, in accordance with this Court's Local Rule 5, as modified by the terms of this
Order. The Parties agree to act in good faith to limit the need to seal Documents filed in this
Court.
21. Filing Highly Confidential Information or Confidential Information Under Seal.
The filing of documents designated as Confidential or Highly Confidential under seal will
be governed by the provisions of Local Civil Rule 5.
22. Parties shall give the other Parties notice(a minimum oftwo business days)if
they reasonably expect a deposition, hearing, or other proceeding to include Highly
Confidential Information so that the other Parties can ensure that only authorized
individuals are present during the portions ofthose proceedings where the Highly
Confidential Information may be used. The use ofa Document as an exhibit at a
deposition shall not in any way affect its designation as Highly Confidential Information
or Confidential Information.
Use ofHighly Confidential Information or ConfidentialInformation at Trial
23. Disclosure at trial or at any evidentiary hearing of any Document,testimony, or other
material designated as Highly Confidential Information or Confidential Information will be
governed pursuant to a separate court order. Unless otherwise directed by the Court, the
Parties shall meet and confer and file a motion accompanied by a proposed order outlining
those procedures no later than 30 calendar days before the first day of trial or any evidentiary
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hearing. Upon the filing of a motion and proposed order governing the disclosure of Highly
Confidential Information or Confidential Information at trial or any evidentiary hearing, the
Parties shall provide notice of such order to Non-Parties whose Highly Confidential
Information or Confidential Information is expected to be used at trial or any evidentiary
hearing.
24. Unless otherwise provided for in this Order, Highly Confidential Information and
Confidential Information produced by a Party or a Non-Party in the Action shall be used
solely for the conduct ofthe Action and shall not be used by a Party, Non-Party, or any
Person subject to this Order, including counsel for a Party or Non-Party, for any business,
commercial, competitive, personal, or other purpose. Such Highly Confidential and
Confidential Information may only be disclosed under the conditions described in this Order.
Investigation Materials or Litigation Materials Subpoenaed or Ordered Produced in
Other Litigation
25. If a Party is served with a lawful subpoena or a court order issued by a court,
arbitral, administrative, or legislative body, or with a court order issued in other litigation
that compels disclosure of any information or items designated in the Action as
Confidential or Highly Confidential that Party must:
(a)
promptly notify in writing the Designating Party (such notification shall
include a copy of the subpoena or court order);
(b)
promptly notify in writing the Person or entity who issued the subpoena or
caused the order to issue in the other litigation, that some or all of the material covered by
the subpoena or order is subject to this Order(such notification shall include a copy of this
Order);and
(c)
cooperate with respect to all reasonable procedures sought to be pursued by
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the Designating Party whose Highly Confidential or Confidential Information may be
affected.^
26. If the Designating Party timely® seeks a protective order, the Party served with the
subpoena or court order shall not produce any information designated in this Action as
Confidential or Highly Confidential before a determination by the court from which the
subpoena or order issued, unless the Party has obtained the Designating Party's permission.
The Designating Party shall bear the burden and expense ofseeking protection in that court
of its Confidential Information or Highly Confidential Information—and nothing in these
provisions should be construed as authorizing or encouraging a Receiving Party in the Action
to disobey a lawful directive from another court.
27. If, under any public records or other relevant law,any Investigation Materials or
Litigation Materials are subject to any form of compulsory process in a Plaintiff State or is
demanded from any Plaintiff, such Plaintiff shall notify in writing the Designating Party
whose Investigation Materials or Litigation Materials may be affected at least 10 business
days before producing Investigation Materials or Litigation Materials, unless state or federal
statute, or court order or other public adjudicatory body requires that the Plaintiff State
produce the Investigation Materials or Litigation Materials in a shorter time frame. A Plaintiff
shall not produce the Investigation Materials or Litigation Materials in response to such
^ The purpose of imposing these duties is to alert the interested parties to the existence of this
Order and to afford the Designating Party in this case an opportunity to try to protect its
confidentiality interests in the court or other tribunal from which the subpoena or order issued.
® The Designating Party shall have at least 14 days from the service ofthe notification pursuant
to Paragraph 25(a)to seek a protective order, imless the subpoena or order requires a response
within a period shorter than 14 days, or unless a shorter period applies under the rules of the
court or other tribunal from which the subpoena or order issued, in which case such rules shall
apply.
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compulsory process orpublic records request unless the Plaintiff deems that it is required by
law to do so and provides 10 business days' notice of its intent to do so to the Designating
Party, unless state or federal statute, or court order or other public adjudicatory body requires
that the Plaintiff produce the Investigation Materials or Litigation Materials in a shorter time
frame. However, if a Plaintiff denies a public records or similar request and the denial is not
successfully challenged or overruled, the Plaintiff does not need to provide notice pursuant to
this paragraph. IfInvestigation Materials or Litigation Materials are requested for disclosure
under a state's public information act or the equivalent, this Order prohibits disclosure to the
extent the state's public information act or the equivalent provides an exception for disclosure
of information protected by court order. Nothing contained herein shall alter or limit the
obligations of a Plaintiff State that may be imposed by statute or court order regarding the
disclosure of Documents and information supplied to the state.
Procedures upon Termination ofthis Action
28. The obligations imposed by this Order survive the termination of this Action unless
the Court, which shall retain jurisdiction to resolve any disputes arising out ofthis Order,
orders otherwise. Except as otherwise provided by Paragraph 18, within 90 days after the
expiration of the time for appeal of an order,judgment, or decree terminating the Action, all
Persons, other than Plaintiffs, having received information designated as Confidential
Information, Highly Confidential Information) or Highly Confidential - Source Code in such
Action must return all copies thereof to the Protected Person(or the Protected Person's
counsel if represented by counsel)that produced it or destroy or delete all copies of such
Confidential Information, Highly Confidential Information, or Highly Confidential - Source
Code. Within 90 days after the expiration ofthe time for appeal of an order,judgment, or
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decree terminating the Action, all Plaintiffs in such Action having received information
designated as Confidential Information, Highly Confidential Information, or Highly
Confidential - Source Code must, to the extent permitted by Plaintiffs' retention schedules,
either make a good-faith effort to return all copies thereof to the Protected Person(or the
Protected Person's counsel if represented by counsel) that produced it or destroy or delete all
copies ofsuch Confidential Information, Highly Confidential Information, or Highly
Confidential - Source Code. Within 90 days after the expiration of the time for appeal of an
order,judgment, or decree terminating this Action, all Persons having received information
designated as Confidential Information must certify compliance with this Paragraph 28 in
writing to the Party or Protected Person that produced the Confidential Information.
29. Counsel for the Parties will be entitled to retain court papers and exhibits, deposition
transcripts and exhibits, hearing transcripts and exhibits, trial transcripts and exhibits,
correspondence (including internal correspondence and email) and work product, provided
that the Parties and their counsel do not disclose the portions of these materials containing
information designated as Highly Confidential Information or Confidential Information to any
Person, except pursuant to court order or agreement with the Protected Person that produced
the Highly Confidential Information or Confidential Information or as otherwise permitted
herein. All Highly Confidential Information and Confidential Information returned to the
Parties or their counsel by the Court likewise must be disposed of in accordance with this
paragraph. Nothing in this paragraph, however, restricts the rights of the Parties under
Paragraphs 14 and 15 of this Order.
New Parties to The Action
30. In the event that additional Persons or entities become parties to the Action,
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such new Parties shall not have access to Confidential Infomiation, Highly Confidential
Information, or Highly Confidential - Source Code produced by or obtained from any
Protected Person until an authorized person executes, on behalf of the new Party, an
Agreement Concerning Confidentiality agreeing to be bound by the terms of this Order
in the form of Appendix A attached hereto.
Non-Parties
31. Any Party, in conducting discovery from Non-Parties in connection with the Action,
shall provide any Non-Party from which it seeks discovery with a copy ofthis Order so as to
inform each such Non-Party of his, her or its rights herein. If a Non-Party provides discovery
to any Party in connection with the Action, the provisions of this Order shall apply to such
discovery as ifsuch discovery were being provided by a Party. Under such circumstances, if
the Non-Party agrees to be bound by the terms of this Order in the form of Appendix A
attached hereto, the Non-Party shall have the same rights and obligations under the Order as
held by the Parties, except that, other than with leave of court, in no circumstance may a
Party's Highly Confidential Information be disclosed to a Non-Party without the consent of
that Party. However, a Party's Highly Confidential Information may be shared with a former
employee ofthat Party if the former employee may view the Highly Confidential Information
pursuant to Paragraph 14.
Reservation ofRights
32. Nothing contained in this Order or any designation of confidentiality hereunder, or
any failure to make such designation, shall be used or characterized by any Party as an
admission by a Party or a Party opponent. Nothing in this Order shall be deemed an
admission that any particular information designated as Confidential Information, Highly
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Confidential Information, or Highly Confidential - Source Code is entitled to protection under
the Order, Federal Rule of Civil Procedure 26(c), or any other law. Nothing in this Order
shall be construed as granting any Person a right to receive specific Confidential Information,
Highly Confidential Information, or Highly Confidential - Source Code where a court has
entered an order precluding thatPerson from obtaining access to that information. The Parties
specifically reserve the right to challenge the designation of any particular information as
Confidential Information, Highly Confidential Information, or Highly Confidential - Source
Code and agree that no Party waives any right it otherwise would have to object to disclosing
or producing any information or item on any ground not addressed in this Order. Similarly,
no Party waives any right to object on any ground to introduction or use as evidence of any of
the Investigation Materials or Litigation Materials covered by this Order.
Standard ofCare
33. The recipient of any Confidential Information, Highly Confidential Information, or
Highly Confidential - Source Code shall maintain such material in a secure and safe area and
shall exercise a standard of due and proper care with respect to the storage, custody, use,
and/or dissemination sufficient to safeguard against unauthorized or inadvertent disclosure of
such material. Confidential Information, Highly Confidential Information, or Highly
Confidential - Source Code shall not be copied, reproduced, extracted or abstracted, except
for the purpose ofthe conduct of the Action or as otherwise provided by this Order. All such
copies, reproductions, extractions, and abstractions shall be subject to the terms of this Order
and be clearly marked to reflect their designation.
Right to Seek Modification
34. Nothing in this Order limits any Person, including members of the public, a Party, or a
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Protected Person, from seeking:(1) further or additional protections of any of its materials, or
(2) modification of this Order upon motion duly made pursuant to the Rules of this Court,
including, without limitation, an order that certain material not be produced at all or is not
admissible evidence in the Action or any other proceeding.
The Privacy Act
35. Any order of this Court requiring the production of any Document,information, or
transcript of testimony constitutes a court order within the meaning of the Privacy Act,5
U.S.C. § 552a (b)(ll).
Persons Bound by This Order
36. This Order shall be binding on the Parties to the Action, their attorneys, and their
successors, personal representatives, administrators, assigns, parents, subsidiaries, divisions,
affiliates, employees, agents, retained consultants and experts, and any persons or
organizations over which they have direct control, and any Non-Party, to the extent such NonParty has agreed to be bound by this Order.
37. All persons subject to this Order are reminded that this Order may be enforced by
the Court's full powers of criminal and civil contempt.
IT IS HEREBY SO ORDERED this ^^ day of
,2023.
./S/
John F. Anderson
United States Magistrate Judge
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APPENDIX A(NON-PARTY CONFIDENTIALITY AGREEMENT)
UNITED STATES OF AMERICA,et al.
Civil Action No.: 1:23-CV-00108-LMB-JFA
Plaintiffs,
V.
GOOGLE LLC,
Defendant.
AGREEMENT rONrFRNTNO CONFIDENTIAMTY
am employed by
as
I hereby certify that:
1. I have read the Protective Order("Order") entered in the above-captioned action (this
"Action") and understand its terms.
2. I agree to be boimd by the terms ofthe Order entered in this Action.
3. I agree to use the information provided to me only as permitted in the Order.
4. I understand that my failure to abide by the terms of the Orderentered in this Action may
subject me to civil and criminal penalties for contempt ofcourt.
5. I submit to the jurisdiction of this Court, and specifically the United States District Court
for the Eastern District of Virginia, solely for the purpose of enforcing the terms ofthe
Order entered in the above-captioned action and freely and knowingly waive any right I
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may otherwise have to object to the jurisdiction ofsaid court.
Signature
Date
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APPENDIX B
UNITED STATES OF AMERICA,et ai.
Civil Action No.: 1:23-CV-00108-LMB-JFA
Plaintiffs,
V.
GOOGLE LLC,
Defendant.
PROTErTTVE ORDERi SOURCE rODE PROTOCOL
Restrictions on those who may view Source Code
1. Unless otherwise ordered by the Court or permitted in writing by the Designating Party,a
Receiving Party may disclose any information or item designated Highly Confidential - Source
Code only to:
a)
the Receiving Party's Outside Counsel of Record in this action, as well as
employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
information for this litigation and who have signed the "Agreement Concerning Confidentiality"
that is attached to the Protective Order as Appendix A;
b)
Plaintiffs' Counsel, if one or more Plaintiffs is the Receiving Party, except that
access by non-attomeys shall be limited to personnel to whom it is reasonably necessary to
disclose the information for this litigation and who have signed the "Agreement Concerning
Confidentiality" that is attached to the Protective Order as Appendix A;
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c)
up to five Experts^ (for the avoidance of doubt, the Parties can agree to allow
such disclosure to more than five Experts of the Receiving Party) of the Receiving Party(1)to
whom disclosure is reasonably necessary for this litigation,(2) who have signed the "Agreement
Concerning Confidentiality"(Appendix A), and(3)as to whom the procedures set forth in
Paragraph 2 below and specifically identified as eligible to access Highly Confidential - Source
Code Information or Items, have been followed;
d)
the Court and its personnel;
e)
stenographic reporters, videographers and their respective staff who have signed
the "Agreement Concerning Confidentiality"(Appendix A)and are transcribing or videotaping
a deposition wherein Highly Confidential - Source Code Information or Items are being
discussed, provided that such reporters and videographers shall not retain or be given copies of
any portions of the source code, which if used during a deposition, will not be attached as an
exhibit to the transcript but instead shall be identified only by its production numbers.
f)
while testifying at deposition or trial in this action only:(i) any current officer,
director, or employee of the Producing Party or original source ofthe information;(ii) any
person designated by the Producing Party to provide testimony pursuant to Rule 30(b)(6) of the
Federal Rules of Civil Procedure; and/or (iii) any person who authored, previously received
(other than in connection with this litigation), or was directly involved in creating, modifying.
^ "Expert" means any Person retained by a Party to serve as a testifying or consulting expert in this
Action, including any employees of the firm with which the expert or consultant is associated and
independent contractors who assist the expert's work in the Action, provided that any such
testifying expert, consulting expert, employee, or independent contractor shall first execute an
Agreement Concerning Confidentiality agreeing to be bound by the terms of this Order in the form
of Appendix A attached hereto and comply with all provisions ofthis Source Code Protocol
including by supplying the information needed for compliance with the Process for Requesting To
Disclose Source Code set forth below.
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or editing the Highly Confidential - Source Code Information or Items, as evident from its face
or reasonably certain in view of other testimony or evidence. Persons authorized to view
Highly Confidential - Source Code Information or Items pursuant to this sub-paragraph shall
not retain or be given copies of the Highly Confidential - Source Code Information or Items
except while so testifying.
Processfor Requesting to Disclose Source Code
2. Unless otherwise ordered by the court or agreed to in writing by the Designating Party, a
Party that seeks to disclose to an Expert(as defined in this Order) any information or item that
has been designated Highly Confidential - Source Code pursuant to paragraphs 1(b) first must
make a written request to the Designating Party that(1)identifies the general categories of
Highly Confidential- Source Code information that the Receiving Party seeks permission to
disclose to the Expert,(2)sets forth the full name of the Expert and the city and state of his or
her primary residence,(3)attaches a copy of the Expert's current resume,(4)identifies the
Expert's current employer(s),(5)identifies each person or entity from whom the Expert has
received compensation or funding for work in his or her areas ofexpertise or to whom the expert
has provided professional services, including in connection with a litigation, at any time during
the preceding five years, and(6)identifies(by name and number of the case, filing date, and
location ofcourt) any litigation in connection with which the Expert has offered expert
testimony, including through a declaration, report, or testimony at a deposition or trial, during the
preceding five years.
3. A Party that makes a request and provides the information specified in the preceding
respective paragraphs may disclose the subject Highly Confidential - Source Code to the
identified Expert unless, within 14 days of delivering the request, the Party receives a written
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objection from the Designating Party. Any such objection must set forth in detail the grounds on
which it is based.
4. A Party that receives a timely written objection must meet and confer with the
Designating Party (through direct voice to voice dialogue) to try to resolve the matter by
agreement within seven days of the written objection. If no agreement is reached, the Party
seeking to make the disclosure to the Expert may file a motion in accordance with Local Rules
and Individual Practices seeking permission from the court to do so. Any such motion must
describe the circumstances with specificity, set forth in detail the reasons why the disclosure to
the Expert is reasonably necessary, assess the risk of harm that the disclosure would entail, and
suggest any additional means that could be used to reduce that risk. In addition, any such motion
must be accompanied by a competent declaration describing the parties' efforts to resolve the
matter by agreement (i.e., the extent and the content of the meet and confer discussions) and
setting forth the reasons advanced by the Designating Party for its refusal to approve the
disclosure.
5. In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden
of proving that the risk of harm that the disclosure would entail (under the safeguards proposed)
outweighs the Receiving Party's need to disclose the Protected Material to its Expert.
Restrictions on those who may see Source Code (Patent and Acquisition Bars)
6. Absent written consent from the Producing Party, any individual who receives access to
information designated Highly Confidential - Source Code by the Producing Party shall not be
involved in the prosecution of patents or patent applications relating to the subject matter of this
action, including without limitation the patents related to the subject matter ofthis action and
any patent or application claiming priority to the patents related to the subject matter of this
action, before any foreign or domestic agency,including the United States Patent and Trademark
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Office ("the Patent Office"). For purposes of this paragraph,"prosecution" means directly or
indirectly drafting, amending, or advising others as to the drafting or amending of patent claims.
To avoid any doubt,"prosecution" as used in this paragraph does not include representing a
party challenging or defending a patent before a domestic or foreign agency (including, but not
limited to, a reissue protest, ex parte reexamination, inter partes reexamination, inter partes
review, post grant review or covered business method review). This Prosecution Bar shall begin
when access to Source Code information is first received by the affected individual and shall end
two(2) years after final termination of this action.
7. Absent written consent from the Producing Party, any individual who receives access to
information designated Highly Confidential - Source Code by the Producing Party shall not(i)
participate in the acquisition of patents or patent applications relating to the subject matter ofthis
action for the purposes of assertion against Google LLC; or (ii) advise or counsel clients
regarding the same. This Acquisition Bar shall not prohibit counsel from advising clients on
other legal matters involving patents, including validity and settlement negotiations. This
Acquisition Bar shall begin when access to Source Code information is first received by the
affected individual and shall end two(2) years after final termination of this action.
Processfor Reviewing Source Code
8. To the extent production of source code becomes necessary in this case, a Producing
Party may designate material as Highly Confidential - Source Code if it comprises, includes, or
substantially discloses confidential, proprietary or trade secret source code or algorithms. This
material may include, among things, technical design documentation that comprises, includes, or
substantially discloses source code or algorithms.
9. Protected Material designated as Highly Confidential - Source Code shall be subject to all
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of the protections herein including the Prosecution Bar set forth in Paragraph 6 and the
Acquisition Bar set forth in Paragraph 7, and may be disclosed only as set forth in Paragraph 1.
10. Any source code produced in discovery shall only be made available for inspection, not
produced except as set forth below, in a format allowing it to be reasonably reviewed and
searched, during normal business hours or at other mutually agreeable times, at(1)an office of
the Producing Party or the Producing Party's primary outside counsel ofrecord or(2)another
mutually agreed upon location. The source code shall be made available for inspection on a
secured computer(the "Source Code Computer")in a secured, locked room without Internet
access or network access to other computers, and the Receiving Party shall not copy, remove, or
otherwise transfer any portion of the source code onto any recordable media or recordable
device. The Producing Party will make a good faith effort to provide legitimate review tools to
the Source Code Computer as requested by the Receiving Party. The Receiving Party shall
provide a license to the requested review tools should the Producing Party not already have one.
The secured computer shall have disk encryption and be password protected. Use or possession
of any input/output device (e.g., USB memory stick, mobile phone or tablet, camera or any
camera-enabled device, CD,floppy disk, portable hard drive, laptop, or any device that can
access the Internet or any other network or external system, etc.) is prohibited while accessing
the computer containing the source code. All persons entering the locked room containing the
source code must agree to submit to reasonable security measures to ensure they are not carrying
any prohibited items before they will be given access to the locked room. The computer
containing source code will be made available for inspection during regular business hours(9:00
A.M. to 5:00 P.M. local time), upon reasonable notice to the producing party, which shall not be
less than 3 business days in advance ofthe requested inspection. The Producing Party may
visually monitor the activities of the Receiving Party's representatives during any source code
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review, but only to ensure that there is no unauthorized recording, copying, or transmission of
the source code.
11. The Receiving Party may request paper copies of limited portions of source code, but
only if and to the extent reasonably necessary for the preparation of court filings, pleadings,
expert reports, or other papers, or for deposition or trial and except to the extent allowed in
Paragraph 16. The Receiving Party shall not request paper copies for the purposes of reviewing
the source code other than electronically as set forth in Paragraph 10 in the first instance. The
Producing Party shall undertake to produce the requested material as soon as possible after it is
requested, but in no event more than 5 business days after the request, and the Producing Party
will provide the requested material on watermark or colored paper(which shall not prevent the
creation oflegible copies made only as authorized herein) bearing Bates numbers and the legend
Highly Confidential- Source Code unless objected to as discussed below. At the inspecting
Party's request or the request of an Expert retained by the inspecting Party to whom disclosure of
material designated Highly Confidential - Source Code is permitted, additional sets(or subsets)
of printed source code may be requested and provided by the Producing Party within 5 business
days ofthe request. The Producing Party may challenge the amount ofsource code requested in
hard copy form pursuant to the dispute resolution procedure and timeframes set forth in
Paragraph 13 of the Protective Order, whereby the Producing Party is the "Challenging Party"
and the Receiving Party is the "Designating Party" for purposes of dispute resolution. Contested
printouts do not need to be produced to the Receiving Party until the matter is resolved by the
Court.
12. The Receiving Party shall maintain a record of any individual who has inspected any
portion ofthe source code in electronic or paper form. The Receiving Party shall maintain all
printed portions of the source code in a secured, locked area under the direct control of counsel
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(or outside experts or consultants who have been approved to access source code)responsible for
maintaining the security and confidentiality of the designated materials. Any paper copies
designated Highly Confidential - Source Code shall be stored or viewed only at(i)the offices or
working locations of outside counsel for the Receiving Party,(ii) the offices or working locations
of outside experts or consultants who have been approved to access source code;(iii) the site
where any deposition is taken (iv) the Court; or(v)any intermediate location necessary to
transport the information to a hearing, trial or deposition. Except as provided in Paragraph 16 of
this Appendix, the Receiving Party shall not create any electronic or other images ofthe paper
copies and shall not convert any of the information contained in the paper copies into any
electronic format. Any printed pages ofsource code, and any other documents or things
reflecting source code that have been designated by the producing party as Highly Confidential -
Source Code may not be copied, digitally imaged or otherwise duplicated, except the Receiving
Party may make additional paper copies if such additional copies are necessary to prepare court
filings, pleadings, or other papers(including a testifying expert's expert report) or necessary for
deposition, or as provided below in Paragraph 16. Any paper copies used during a deposition
shall be retrieved by the Receiving Party at the end of each day and must not be given to or left
with a court reporter or any other unauthorized individual.
13. The Receiving Party's outside counsel and/or expert shall be entitled to take notes
relating to the source code but may not copy any portion of the source code into the notes. No
copies of all or any portion ofthe source code may leave the room in which the source code is
inspected except as otherwise provided herein. Further, no other written or electronic record of
the source code is permitted except as otherwise provided herein.
14. A list of names of persons who will view the source code will be provided to the
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producing party in conjunction with any written (including email) notice requesting inspection.
The Producing Party shall maintain a daily log of the names of persons who enter the locked
room to view the source code and when they enter and depart. The Receiving Party shall be
entitled to a copy of the log.
15. The Receiving Party's outside counsel shall maintain a log of all copies ofthe source
code in its possession or in the possession of its retained consultants. The log shall include the
names ofthe recipients and reviewers of copies and locations where the copies are stored. Upon
request by the Producing Party, the Receiving Party shall provide reasonable assurances and/or
descriptions ofthe security measures employed by the Receiving Party and/or person that
receives a copy ofany portion of the source code. The Producing Party shall be entitled to a copy
ofthe log.
16. Except as provided in this paragraph, the Receiving Party may not create electronic
images,or any other images, of the source code from the paper copy for use on a computer (e.g.,
may not scan the source code to a PDF,or photograph the code). The Receiving Party may
create an electronic copy or image of limited excerpts of source code only to the extent
necessary in a pleading, exhibit, expert report, discovery document, deposition transcript, other
Court document, or any drafts of these documents("Source Code Documents"). The Receiving
Party shall only include such excerpts as are reasonably necessary for the purposes for which
such part of the Source Code is used. Images or copies of Source Code shall not be included in
correspondence between the parties(references to production numbers shall be used instead) and
shall be omitted from pleadings and other papers except to the extent permitted herein. The
Receiving Party may create an electronic image of a selected portion of the Source Code only
when the electronic file containing such image has been encrypted using commercially
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reasonable encryption software including password protection. The communication and/or
disclosure of electronic files containing any portion ofsource code shall at all times be limited to
individuals who are authorized to see source code under the provisions of this Protective Order.
Additionally, all electronic copies must be labeled Highly Confidential - Source Code.
17. To the extent portions ofsource code are quoted in a Source Code Document, either(1)
the entire document will be stamped and treated as Highly Confidential - Source Code or(2)
those pages containing quoted Source Code will be separately bound, and stamped and treated as
Highly Confidential - Source Code.
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